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Bill C-248

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1st Session, 36th Parliament,
46 Elizabeth II, 1997

The House of Commons of Canada

BILL C-248

An Act to amend the Patent Act

R.S., c. P-4; R.S., c. 33 (3rd Supp.); 1992, c. 1; 1993, cc. 2, 15, 44; 1994, cc. 26, 47; 1995, c. 1; 1996, c. 8; 1997, c. 9

      Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1. Section 44 of the Patent Act is replaced by the following:

Term of patent

44. (1) Subject to subsection (2) and section 46, the term limited for the duration of every patent issued by the Patent Office for which an application is filed after the coming into force of this section shall be twenty years from the date of the filing of the application in Canada.

Exception

(2) Notwithstanding subsection (1), the term limited for the duration of every patent for an invention that pertains to a medicine as described in section 79, issued by the Patent Office under this Act, for which an application is filed after the coming into force of this section, shall be seventeen years from the date of the filing of the application in Canada.

2. The definition ``Board'' in subsection 79(1) of the Act is replaced by the following:

``Board''
« Conseil »

``Board'' means the Patented Medicine Review Board continued by section 91;

3. The Act is amended by adding the following after section 89:

Compulsory Licences

Grant of compulsory licence

89.1 In the case of a patent for an invention that pertains to a medicine, the Board shall, unless it sees good reason to the contrary, grant to any person applying therefor a licence limited to the use of the invention for the manufacture, use and sale of the medicine, and in determining whether to grant a licence and in settling the terms of the licence and fixing the amount of royalty or other considerations payable, the Board shall consider the factors enumerated in section 89.3.

No licence in first 4 years

89.2 (1) A licence granted under section 89.1 may not commence with respect to a specific medicine until after the expiration of four years following the date on which the patentee received authorization to market the medicine in Canada.

Licence refused or deferred

(2) If a patentee is able to show to the Board that for unusual or special reasons beyond the control of the patentee the patentee has taken longer than usual to establish a patented medicine in the Canadian market, the Board may consider that as good reason not to grant a licence respecting the medicine or to provide that a licence commence at a later date.

Terms of licence

89.3 In determining whether to grant a licence under section 89.1 and in fixing the amount of royalty or other consideration to be paid to the patentee in respect of any licence granted, the Board shall consider

    (a) the desirability of making the patented medicine that is the subject of the application available to the public at the lowest possible price consistent with giving the inventor due reward for the cost of the research carried out in Canada that led to the invention and any contribution that the Board deems appropriate to the cost of the research carried out outside Canada that led to the invention;

    (b) the proportion of net sales revenue spent for research on medicine in Canada by the applicant;

    (c) the proportion of net sales revenue spent for research on medicine in Canada by the patentee;

    (d) the desirability of encouraging research on medicine in Canada; and

    (e) the general public interest in receiving patented medicines at reasonable prices.

4. The heading before section 91 and subsection 91(1) of the Act are replaced by the following:

Patented Medicine Review Board

Establish-
ment

91. (1) The Patented Medicine Prices Review Board is hereby continued under the name ``Patented Medicine Review Board'', and shall consist of not more than five members to be appointed by the Governor in Council.

5. Subsection 100(1) of the Act is replaced by the following:

Biannual reports

100. (1) The Board shall report to the Minister

    (a) no later than April 1 in each year, on its activities during the preceding July 1 to December 31; and

    (b) no later than October 1 in each year, on its activities during the preceding January 1 to June 30.

6. Subsection 100(2) of the Act is amended by striking out the word ``and'' at the end of paragraph (a), by adding the word ``and'' at the end of paragraph (b) and by adding the following after paragraph (b):

    (c) the name of each applicant who applied for a licence under section 89.1 during the period that is covered by the report, the patentee under whose patent a licence was sought, a statement of whether a licence was granted and, if not, the reasons why it was not granted.

7. Subsection 100(4) of the Act is replaced by the following:

Tabling of report

(4) The Minister shall cause a copy of the report to be laid before each House of Parliament on any of the first three days on which that House is sitting after the report is received by the Minister.

Deemed referral to standing committee

(5) A report laid before the House of Commons pursuant to subsection (4) is deemed to be referred to such standing committee of the House as has been established by the House to consider matters relating to the Department of Industry.

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