Supreme Court Rules Against Patent Evergreening

The Canadian Supreme Court has issued another decision that recognized the limits of intellectual property.  This case, a pharmaceutical patent fight between AstraZeneca and Apotex, includes language from the court that explicitly warns against the practice of evergreening, whereby pharmaceutical companies seek to extend the life of patent protection by adding new patents of marginal significance. 

In overturning a Federal Court of Appeal ruling that favoured AstraZeneca, the court said:

"By imposing the 24-month delay called for by the NOC Regulations, the decision of the Federal Court of Appeal undermines achievement of the balance struck by Parliament between the objectives of the FDA and regulations thereunder (making safe and effective drugs available to the public) and the Patent Act and its regulations (preventing abuse of the early working exception to patent infringement).  Given the evident (and entirely understandable) commercial strategy of the innovative drug companies to evergreen their products by adding bells and whistles to a pioneering product even after the original patent for that pioneering product has expired, the decision of the Federal Court of Appeal would reward evergreening even if the generic manufacturer (and thus the public) does not thereby derive any benefit from the subsequently listed patents."

One Comment

  1. Matthew Rimmer says:

    Worth cross-referencing a similar decision by the Australian High Court on Losec several years ago:
    [ link ]

    In a famous dissent, Kirby J observed pithily: “In its interpretation of the legislation, and in identifying the proper approach to the ultimately factual determination of obviousness called for by that statute, this Court should avoid creating fail-safe opportunities for unwarranted extensions of monopoly protection that are not clearly sustained by law.”