Eli Lilly adds $400 million to NAFTA lawsuit against Canada’s patent norms
The Globe and Mail reports that Eli Lilly “has escalated a challenge it launched last year against Canada’s patent rules under the North American free-trade agreement, and is now demanding $500-million in compensation after the company lost its Canadian patents on two drugs.”
The drugmaker had originally asked for $100 million in its November 7, 2012 notice of intent to sue Canada using the investor-state dispute settlement process in NAFTA, which we wrote about here. That money was to compensate Eli Lilly for the Canadian court-ordered invalidation of its patent for the ADHD drug Strattera. The notice claimed numerous violations of NAFTA’s investment protections, including fair and equitable treatment, national treatment and expropriation.
The additional $400 million in this second NAFTA notice attacks the Supreme Court’s decision in May this year to invalidate a patent for Zyprexa, the company’s best-selling anti-psychotic drug whose patent expired in the United States in 2011. The patent had expired in Canada, too, but who cares! What do they say about old wounds…
Both cases, now merged into one mega-lawsuit (or at least the threat of a suit), challenge Canada’s “promise doctrine” in which a judge will sometimes consider the promises a company makes about its product when the patent is filed when deciding whether to invalidate that patent. Often this decision takes as a result of a challenge to the patent by a would-be generic competitor. Eli Lilly says this “judge-made law” violates NAFTA’s and the WTO’s intellectual property rules.
Read the full story here.