Questionable Policy: New Canadian IP Enforcement Guidelines Miss The Mark On Pharma

On March 31, 2016, the Canadian Competition Bureau released a long-awaited substantive update of its Intellectual Property Enforcement Guidelines (the "IPEGs").

The IPEGs (first issued in September 2000) describe the Bureau's approach to the interface between competition law and intellectual property rights, and its enforcement approach to conduct involving the exercise of IP rights. The newly published updated IPEGs (the "New IPEGs") set out the Bureau's enforcement approach in respect of the settlement of patent litigation proceedings in the pharmaceutical industry, so-called "product switching" strategies by innovator pharmaceutical companies, the activities of patent assertion entities ("PAEs") (i.e., companies whose business model is asserting patents although they do not manufacture or sell products or services related to such patents), and conduct involving standard essential patents ("SEPs") ( i.e., a patent that claims an invention that must be used in order