August 18, 2015 by Adam Falconi
This is an excerpt from a paper by Adam Falconi, the recipient of the 2015 Barry D. Tomo Memorial Prize for best research paper on a subject related to industrial or intellectual property law. The full paper will appear in the upcoming edition of the Intellectual Property Journal (IPJ).
In September of 2014 the consolidated text of the Comprehensive Economic and Trade Agreement (“CETA”) was released to the public.  CETA is a landmark free trade agreement between Canada and the European Union that has been in negotiations since 2009.  CETA has been touted by the Canadian Government as its “most ambitious trade agreement to date” and the agreement looks to have far-reaching effects on the economy through provisions covering everything from dairy tariffs to investor-state disputes.  However, the issue that has attracted the most commentary and fierce debate throughout the CETA negotiations is the agreement’s potential impact on Canada’s pharmaceutical industry. This controversy was primarily due to the fact that the European Union had been putting pressure on the Canadian government during the CETA negotiations to allow for provisions that would strengthen its patent protection for pharmaceuticals, despite the fact that according to some commentators, Canada already provides for some of the strongest amount of protection for pharmaceuticals in the world. Irrespective of this debate, the official consolidated CETA text contains two provisions that increase patent protection for pharmaceuticals in Canada through (1) the availability of patent term restoration for time lost in pharmaceutical regulatory processes, and (2) the implementation of “equivalent and effective right of appeal” for all litigants that engage in a “linkage” mechanism where the granting of market authorization for pharmaceuticals is linked with patent protection.