Today the Supreme Court of Canada (SCC) issued a significant ruling overturning Canada’s harmful “Promise Doctrine,” which was a completely novel and ill-advised standard Canada has been using since 2005 to overturn patents on innovative pharmaceuticals and biologics.
Canada’s Promise Doctrine, wholly invented in Canada and finding no basis in domestic or international patent law, turns out to not have even been consistent with Canada’s own Patent Act, according to the Supreme Court, which stated that “The Promise Doctrine is incongruent with both the words and the scheme of the Patent Act.”
Instead of simply granting a patent based on a non-obvious and useful inventive step, the Promise Doctrine insisted that a drug must be able to meet the nearly impossible test of predicting exactly how the product will be useful and then living up to that standard at the time the patent is applied for. This means that a court could be highly subjective in determining that a given patent did not live up to that standard at a time long after the patent was granted, which Canadian courts have been doing, invalidating 26 patents over the last decade based on this faulty Promise Doctrine.
The US Chamber has an excellent statement on the ruling, and Philip Stevens and Mark Schultz at the Geneva Network have a great explanation how the Promise Doctrine (now defunct) threatened innovation in Canada and beyond.
Canada’s Supreme Court apparently understands the importance of not weakening patent protection. Unfortunately, the US Supreme Court seems determined to go in the opposite direction, which is why Congress is beginning to contemplate new legislation to strengthen patent protection in the US.