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A box of Viagra, typically used to treat erectile dysfunction. (MARK BLINCH/REUTERS)
A box of Viagra, typically used to treat erectile dysfunction. (MARK BLINCH/REUTERS)

Globe editorial

The Supreme Court, Viagra and innovation Add to ...

The Supreme Court of Canada invigorated Canadian patent law last week by reasserting its essential principles, in a case about the erectile-dysfunction drug Viagra.

A patent is a temporary monopoly on an invention, granted on the condition that it will be clear just what the innovation is, so that competitors know what is off limits for now – and what will eventually be available to all manufacturers, who can benefit the public by selling at lower prices.

In 1998, Pfizer Canada Inc. obtained the Canadian patent for Viagra. The document starts out with a formula that could generate 260 quintillion different chemical compounds. At the end, it deals with sildenafil, which is described as “one of the especially preferred compounds.”

That was an understatement. Sildenafil is the ingredient in Viagra that actually works for the promised purpose, though eight other “especially preferred” chemicals were named in the document.

A generic pharmaceutical company, Teva Canada Ltd., challenged the patent, but the trial judge (with some misgivings) and the Federal Court of Appeal accepted Pfizer’s defence.

Mr. Justice Louis LeBel wrote the Supreme Court’s unanimous judgment, which struck down the patent – which in any case will expire in 2014. The decision revivifies the fundamentals of patent law. Patents are based on a bargain, he said, a quid pro quo in which the “quid” is a time-limited monopoly and the “quo” is public disclosure.

As Ian Binnie, a former judge on the Supreme Court, put it in a 2002 case, new technology is “coaxed into the public domain.”

One of the old cases that Mr. Justice Lebel cited said that “a reasonably well informed artisan” should be able “to make the thing” at the end of the patent period. He himself said, quite harshly, that patent-holders should not be “allowed to ‘game’ the system.”

Pfizer is evidently not alone in providing too much information – haystacks containing a needle, forests with one special leaf.

This case was not really about the medical interest in erectile dysfunction or in Viagra as a remedy. It was about the legal infrastructure for the encouragement – and the widespread usefulness – of innovations. Patent disclosure should actually disclose, not bury.

 

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