Use It Or...... Else: Patent Non-Use As Abuse Of Dominant Market Position

In a matter of a first impression under the Canadian Competition Act, on May 13, 2014 the Competition Bureau released a Position Statement¹ regarding what it refers to as "product hopping" or "product switching". That is conduct designed to switch demand from one of a firm's patent protected products to another, with the goal of making generic entry more difficult. This is the first time that the Bureau has conducted a formal inquiry into product hopping, although the conduct has been subject to US and European competition scrutiny.² In the particular Canadian case, however, the Bureau closed its inquiry under the abuse of dominant market position provisions of the Act without taking action, because it found that the product had only been withdrawn from the market for a limited period of time, such that no injury occurred.