CIPPIC and CIPP File Amicus Application in NAFTA Arbitration

CIPPIC and the Centre for Intellectual Property Policy at McGill University have together applied for amicus curae status in Eli Lilly v. Government of Canada UNCT/14/2, a NAFTA trade dispute before an arbitration tribunal.

At issue is whether Canada's utility standard under patent law meets Canada's obligations under North American Free Trade Agreement. The Complainant, the pharmaceutical giant Eli Lilly, claims that it does not. When a Federal Court judge invalidated one of its patent registration for failing Canada's legal test for "utility" - an essential requirement of any valid patent - Eli Lilly claimed that it was entitled to a remedy under NAFTA's investor protection provisions.

Most trade agreements these days include these investor protection provisions. This case marks the expansion of the use of these provisions from cases that look more like state expropriation to the general contours of substantive intellectual property law. The Tribunal is being asked to challenge the court's supervisory role over patentability in the Canadian patent system and to take an expansive view of the content of NAFTA's patent provisions.