“Patent Law at the Supreme Court of Canada: A Healthy Balance?”, in Jocelyn Downie & Elaine Gibson, eds., Health Law at the Supreme Court of Canada. Irwin Law Books, 2006, pp. 337-364
In the health care context, the boundaries of private ownership rights over innovation in the fields of biotechnology and pharmaceuticals and the scope of the public domain have important implications for research and development, for cost to both the public purse and to private individuals, and ultimately for access to treatment. An approach which places limits and sets boundaries is therefore often favoured by those concerned about these areas of activity. By contrast, the pharmaceutical industry has emphasized the importance of strong and broad patent rights, arguing that they provide the necessary incentive for continued research and development.
This paper explores these tensions in the context of the decisions of the Supreme Court of Canada. The first section of the paper explores the Court’s recent statements on the purpose of patent law, with a particular focus on statements of purpose in health law related cases. After a consideration of the general statements of purpose made in the cases, the paper examines how these statements influence the interpretation and outcomes in key cases.
The second section of the paper examines the Court’s approach to interpreting the scope of patents. As the Court has pointed out, a patent is a regulation within the meaning of the Interpretation Act. Thus the interpretation of the scope of the patent granted, also referred to as “claims construction,” is a second level of judicial interpretive activity. The paper considers recent key decisions of the Court in which it details the proper approach to claims construction in light of the stated purposes of patent legislation.