The Competition Bureau has released a couple of documents on competition issues and patents, addressing among other things non-use of an IP right and potentially anti-competitive patent litigation settlement agreements.

Last week, the Competition Bureau released updated Intellectual Property Enforcement Guidelines. The release follows consultations held earlier this year.

The most significant revisions to the Guidelines include clarifications on the circumstances when the non-use of an IP right could create a competition issue and the Bureau’s enforcement approach to patent pooling arrangements, a particular type of business agreement among firms.

The Bureau identifies that there will be a second stage of consultations on further Guidelines relating to patent litigation settlement agreements, patent assertion entities and standard essential patents.

Yesterday, the Competition Bureau released a paper entitled “Patent Litigation Settlement Agreements: A Canadian Perspective” that was presented by the Commissioner of Competition, John Pecman, at a conference on Global Antitrust Challenges for the Pharmaceutical Industry. The report concludes, in part:

In this regard, the Bureau has taken a keen interest in patent litigation settlement agreements between brand and generic drug manufacturers and the possibility that they may delay generic entry. The experience of other jurisdictions in prosecuting settlements and the resulting jurisprudence has been particularly informative for the Bureau as it continues its work on developing a Canadian approach. Although Canada’s regulatory regime governing pharmaceuticals has several unique features, the Bureau feels that these differences neither merit reduced concern over the possible impacts of these settlements nor call for a less vigorous enforcement approach than that adopted in the US or Europe. If anything, Canada’s regulatory framework needs to be strengthened to include a settlement notification system. Without such a system, Canada risks losing the full benefits that generic entry and competition can bring to consumers and plan providers.