Patent Law at the Supreme Court of Canada: A Healthy Balance?
| Author | Teresa Scassa |
| Pages | 337-363 |
337
Patent Law at the Supreme Court of
Canada: A Healthy Balance?
teresa scassa
A. INTRODUCTION
e Supreme Court of Canada has shown a great deal of enthusiasm lately for
intellectual property law. Over the last ten years, it has granted leave in a wide
range of cases in copyright, trademark s, and patent law, and decisions on these
matters now appear with regularity. Running through the recent intellectual
property decisions of the Court is a theme of balance: balancing the interests
of society (or users) and the interests of innovators or creators. In this paper,
I critically examine this balancing approach in order to identify the interests
that are recognized by the court and the manner in which they are assessed. I
then consider how this balance is struck in two contexts; rst, in interpreting
the scope of patent protection; and second, in the interpretation of the complex
Patented Medicines (Notice of Compliance) Regulations.
On one level, intellectual propert y denes the limit s of personal property
rights in works of intellect or innovation. Intellectual property can also be seen
as a set of incentives for innovation; the protection of intellectual property
rights can thus be a means of fostering innovation or creativity. While the two
descriptions are not mutually exclusive, each reects a dierent policy empha-
sis. A court that characterizes the interpretation of intellectual property rig hts
as an exercise in determining the limits of private ownership and, by extension,
See, generall y, Teresa Scassa, “I nterests in the Balance” in M ichael Geist, ed., In the Pub -
lic Interest: e Future of Canadia n Copyright Law (Toronto: Irwin Law, ) at –.
Patented Medicines (Notice of Compl iance) Regulations, SOR/- [].
338 Health Law at the Supreme Court of Canada
the scope of the public domain, will oer an interpretation of the law that is
dierent than if the act of interpretation is situated in the context of fostering
innovation.
As intellectual property law is, for the most part, statute law, statutory
interpretation is a crucial part of dispute resolution in this area. It is in this
process of statutory interpretation that the courts must direct ly engage with
public policy, as they seek to situate their interpretations in the context of the
purpose of the legislation. While there is consensus among the justices of the
Supreme Court t hat the interpretation of i ntellectual prope rty statutes shou ld
be purposive, split decisions of the court suggest a lack of consensus as to what
interpretation best meets the purpose. In some of the cases I discuss, the split in
the court reects the tension between an approach which delimits the boundar-
ies of intellectual property monopolies and one which seeks to further broader
economic policy objectives.
A further tension is introduced by the fact that patent legislation is one-
size-ts-a ll; in other words, it is intended to provide limited monopolies over
inventions in all elds of innovation. As technology diversies, the suitability
of patent legislation to further the goals of innovation equally across all elds
can be called into question. Pharmaceutical and health care-oriented biotech-
nological innovation, particularly in a country with a publicly funded health
care system, poses particular public policy cha llenges which are not easily ad-
dressed in any kind of nuanced manner by interpretive approaches craed in
the context of more traditional indus trial elds of in novation.
In the health care context, the boundaries of private ownership rights over
innovation in the elds 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 oen favoured by those concerned about these areas of activity. By
contrast, the brand name pharmaceutical industry has emphasized the impor-
e major statutory areas of intelle ctual property law are copyr ight, patent trade-mark,
industrial de sign, and semi-conductor ch ip protection law. e common law still governs
other intellectua l property-related areas such as pa ssing o, personality r ights, and trade
secrets.
For example, both majority a nd dissenting justices in Ha rvard College v. Commissioner
of Patents, [] S .C.R. , SCC [Harvard College], favoured a purposive
interpretation of the legi slation; however, they were not in agreement on the resu lts that
would be produced by such an approa ch.
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