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1 Competition Bureau of Canada Releases Consultation Draft of Updated IP Enforcement Guidelines By Stephen Nattrass and Benjamin Kyle Reingold

6 IP Monitor: I Went Public With My Invention – Can I Still Get a Patent?

By A. Sasha Mandy

Competition Bureau of Canada
Releases Consultation Draft of
Updated IP Enforcement Guidelines

By Stephen Nattrass ( stephen.nattrass@nortonrosefulbright.com), Benjamin Kyle Reingold ( benjamin.reingold@nortonrosefulbright.com), Norton Rose Fulbright

The Competition Bureau released updated draft Intellectual Property Enforcement Guidelines (IPEGs) for public consultation, and is seeking comments on the IPEGs by August 10, 2015.

The analytical framework in this draft is similar to the September 2014 version, although this version includes many more examples on patent settlements and standard essential patents.

The Competition Bureau (Bureau) has also stepped back from its earlier position and has clarified that settlement agreements will be reviewed civilly, absent evidence of intent to fix prices, allocate markets or restrict output.

In September 2014, the Bureau
issued a white paper that provides
background information on the
pharmaceutical industry in Canada,
the regulatory regime in Canada, the
provisions of the Competition Act (Act)
that may apply to reverse-payment
settlement agreements, and the Bu-
reau’s preliminary views as to how the
Act could apply to such settlements.
As part of the white paper, the Bureau
calls for a notification regime similar to
that which exists in the United States.
The Bureau has maintained its posi-
tion that the circumstances in which
the Bureau may apply the Act to con-
duct involving IP or IP rights fall into
two broad categories:
• Conduct involving something more
than the mere exercise of the IP right,
where general provisions of the Act
will be applied; and
• Conduct involving the mere exer-
cise of the IP right and nothing else,
where section 32 (special remedies)
of the Act will be applied.