Canada has filed its Statement of Defence in Eli Lilly’s NAFTA challenge to the ‘promise utility doctrine’ applied by Canadian courts to invalidate its Strattera and Zyprexa patents. The Statement of Defence characterizes Eli Lilly’s claims as, among other things, seeking to transform the NAFTA tribunal into “a supranational court of appeal from reasoned, principled, and procedurally just domestic court decisions.”

The Statement of Defence (PDF) was filed in response to Eli Lilly’s Notice of Arbitration (see early post).

[11] In this Statement of Defence, Canada will provide: (1) an overview in Canadian patent law, to provide context for Claimant’s misstatements regarding Canadian law on utility; (2) a description of the specific role played by the Federal Court in applying the Patent Act,establishing that the court is responsible for determining the validity and existence of the intellectual property right; (3) an outline of the facts relevant to the two court proceedings, demonstrating that Claimant received full due process and reasoned and principled decisions; and (4) brief comments on Canada’s international intellectual property obligations under NAFTA Chapter Seventeen, TRIPS and the Patent Cooperation Treaty (“PCT”), confirming that these have no bearing on this case. This factual background confirms and reinforces the conclusion that nothing in the two court decisions at issue in any way violates Canada’s obligations under Chapter Eleven of NAFTA.

In May, the NAFTA Tribunal issued a procedural order, including scheduling and a protective order.