The Canadian Chamber of Commerce has been one of the most vocal supporters of the TPP and intellectual property reform. It recently waded into the case that most clearly crystallizes the dangers of trade and IP in Canada: the Eli Lilly claim for compensation from Canadian taxpayers for hundreds of millions of dollars due to a pair of patent law decisions. Most patent experts believe that Canada has a strong defence, yet that has not stopped the foreign pharmaceutical company from seeking $500 million in damages.
Last month, several groups submitted amicus briefs to the dispute resolution panel, including one from the Canadian Chamber of Commerce (there is also a submission from CIPPIC and the Centre for Intellectual Property Policy). The Chamber suggests that declining spending in research and development may be due to legal uncertainty, despite years of declining research and development expenditures by international pharmaceutical companies in Canada that predates the Eli Lilly issue. The brief saves the money quote until the last paragraph:
These failures to invest can be linked to failures in the intellectual property framework that deviates from international norms. Canada needs new strategies to foster Canadian patent generation and internationally competitive pools of Canadian intellectual property. But first, Canadian business needs the certainty that is derived from international patent law frameworks.
The Canadian Chamber of Commerce’s decision to impliedly side with Eli Lilly against the Canadian government will not come as a surprise given that the company is a Chamber member (one of several close connections between the lobby group and international pharmaceutical companies). Yet for the Government of Canada, the submission set off alarm bells and raised concerns about its independence:
The disclosure provided by the Canadian Chamber of Commerce leaves undefined the nature and extent of the relationship between the applicant and Claimant. While its application discloses that Claimant “is a member in good standing of the Canadian Chamber of Commerce,” it does not disclose the extent of financial contributions made by Claimant to the organization. Nor does it disclose the role that Claimant plays in developing and informing Canadian Chamber of Commerce policy positions for the organization’s “active and consistent engage[ment] with government and the media on issues related to international trade and intellectual property.”
Furthermore, the application does not disclose that Claimant is currently sponsoring a Canadian Chamber of Commerce policy project on regulatory barriers to trade. The project, which will result in a report that “draw[s] on input from members, sponsors and regulatory experts,” purports to answer questions like: “How can we make sure our trade agreements result in real regulatory harmonization and mutual recognition?” The project’s co-sponsors include Claimant, IMC (formerly Rx&D, and another applicant for amicus status in this proceeding), and another life sciences organization of which counsel for Claimant, Gowlings, is a member. These facts should concern the Tribunal as to whether the applicant and Claimant are truly independent and whether they have a unique perspective that would assist the Tribunal.
The Tribunal ultimately admitted the Chamber of Commerce’s submission, but the government’s obvious concern about its independence – along with its implicit support for a $500 million ruling against Canadian taxpayers – should resonate within government on the intellectual property policy and trade files for many years to come.