The Competition Bureau published a white paper in Fall 2014
discussing how it intends to consider patent litigation settlements
in the future, particularly in the pharmaceutical sector. Entitled
Patent Litigation Settlement Agreements: A
Canadian Perspective,1 the white paper
canvasses a variety of competition law issues that have arisen,
notably, in the United States in the context of patent settlements,
and discusses how the Competition Bureau may react to similar
developments in Canada.
Generally, the United States Federal Trade Commission
("FTC") has taken the position that American antitrust
laws are not violated by settlement agreements that merely set a
date for a generic pharmaceutical manufacturer's market entry.
Pay-for-delay agreements (where a brand pharmaceutical company pays
the generic pharmaceutical company to delay market entry), on the
other hand, can align the interests of brand and generic
competitors, and can be seen to violate U.S. antitrust
