Balancing Intellectual Property and Humanity: Public Policy and the Patentability of Pharmaceuticals in Canada

Abstract:

The concept of intellectual property seeks a balance between proprietary rights associated with patentable inventions and the free flow of useful, affordable inventions. In the context of pharmaceuticals, there is a public policy argument with respect to global (and domestic) health concerns—specifically, the affordable and accessible treatment and prevention of disease through pharmaceutical treatment—that the public interest would benefit from the elimination of patent protection over pharmaceuticals. In Canada, an argument can be made for the elimination of pharmaceutical patent rights, based on health concerns, and the prevention and treatment of disease. However, currently, there are both practical and legal bars to eliminating patent rights. Canada must therefore look at alternative solutions for affordable access to medications. Two such solutions are proposed in this paper: first, the elimination of new-use patents would limit the access to extended protection for pharmaceuticals after the patent over the drug itself has expired; second, a compulsory licensing scheme would balance the economic interests of pharmaceutical patent holders with the desire of generic companies to enter the drug market and offer competitive prices for pharmaceuticals. Both solutions are steps in the right direction toward timely, affordable access to useful pharmaceuticals in Canada.