Alexander Raths /
21 October 2016Americas

Canada’s ‘promise doctrine’ has chilling R&D effect, says report

The ‘promise doctrine’ has had, and will probably continue to have, a damaging impact on Canada’s investment portfolio, a report has said.

Published this month by Charles River Associates, a consultancy firm, the report investigated the relationship between IP, specifically the promise doctrine, and innovative research and development (R&D) in Canada.

The promise doctrine requires the demonstration or evidence of a patent’s utility—if the utility falls short of fulfilling the “promise” contained in the patent, the patent will be invalidated, even if it is useful for purposes other than those promised.

The report found that IP is an important factor in determining the location of investment in R&D.

It also found that where legal uncertainty is present, the local regime is weakened and becomes less attractive to investors.

The promise doctrine, created in 2005, was shown to have an “important indirect effect on R&D investment decisions through the chilling effect it has had on Canada’s innovation reputation”.

As of September 2016, at least 28 pharmaceutical patents had been invalidated due to a lack of utility as a result of the promise doctrine’s application.The report stated: “The invalidation of this significant number of pharmaceutical patents as a result of heightened utility requirements has created an atmosphere of legal uncertainty among innovative pharmaceutical companies in Canada and beyond.”

Charles River Associates’ report was commisionedby Innovative Medicines Canada, the national association representing Canadians who work in research-based companies.

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