Competition Bureau Signals Increased Scrutiny Of Patent Litigation Settlement Agreements

Patent litigation settlement agreements took centre stage in a speech by the Commissioner of Competition (Commissioner) and related White Paper – Patent Litigation Settlement Agreements: A Canadian Perspective – issued by the Competition Bureau (Bureau) on September 23, 2014. In the most detailed guidance provided to date regarding the application of the Competition Act to patent litigation settlement agreements, the White Paper indicates that such agreements may potentially be reviewed under the criminal provisions of the Competition Act, in contrast to the approach adopted by the U.S. Supreme Court. In addition, the Commissioner called for the introduction of a notification regime for all patent settlements, a change that would almost certainly require legislative amendment and would arguably expand the Commissioner's role from enforcer to industry-specific regulator.