Mr. Speaker, it is a pleasure to take part in today's debate on Bill S-17, an act to amend the Patent Act. The objective of the bill is clearly to change our patent legislation in light of two recent WTO rulings.
The first ruling relates to the duration of patents before October 1, 1989, and the second concerns the provisions of the act on storage.
In 1987, several important changes were made to the Patent Act. The duration of patent protection went from 17 years after patent registration to 20 years after the filing of the patent application. That change came into effect on October 1, 1989.
Before the Uruguay round, multilateral trade negotiations on GATT did not cover intellectual property rights. The Uruguay round, which gave birth to the WTO, also produced the agreement on trade related aspects of intellectual property rights, which contains certain provisions on patent protection. Section 33, for example, says that the protection duration must not be less than 20 years from the date the patent application was filed.
As a matter of fact, in 1992 the federal government undertook to amend the Patent Act by introducing in the House of Commons Bill C-91, an act to amend the Patent Act, 1992. This bill eliminated compulsory licensing for drugs. Compulsory licensing had been set up under the act. It authorized the licence owner, and only him, to produce, use and sell a patented invention before the patent expired.
This bill also created two exceptions to infringement of patent, a rule under which anyone who produced, used or sold a product protected by a valid patent without the consent of the patent owner could be sued for infringement of patent, by authorizing the use of a patent for certain purposes before it expired.
I would like to provide members of the House with some background information. At the end of 1997, the European Union asked Canada to hold consultations as part of the dispute settlement procedures of the WTO, on the one hand because of the protection provided to pharmaceutical inventions under Patent Act, and on the other because of Canada's obligations under the TRIPS agreement.
Specifically, the European Union was concerned about the exceptions regarding regulatory approval and storage. In early 1999, the WTO created a special panel mandated to review the European Union challenge to these two exceptions under the agreement, with regard to intellectual property rights as they related to trade.
The European Union argued in this regard that the Patent Act and the regulations authorizing protection and storage of drugs without the consent of the owners of the patent during the six months prior to its expiry—this is section 55.2(2)—was an infringement of Canada's obligations under the TRIPS agreement—namely sections 28.1 and 33.1.
The European Union also argued that by applying to drug patent owners a less generous treatment than for other technological areas, Canada had ignored its obligations under section 27.1 of the TRIPS agreement, which provides for the granting of patents and the enjoyment of patent rights without discrimination based on technology.
On this occasion, the European Union also indicated that the provisions of section 55.2(1) of the Patent Act authorizing a third party, without the consent of the patent holder, to use a patented invention during the term of the patent, in order to obtain regulatory approval for the sale of an equivalent product after the expiry of the patent, violated the provisions of section 28.1 of the agreement on TRIPS.
The WTO struck a special panel, which backed the European Union as far as the exception relating to storage contained in section 55.2(2) of the Patent Act was concerned, deeming it to be incompatible with Canada's obligations under section 4 of the agreement on TRIPS.
Canada was to implement the panel's decision concerning the exception relating to storage by October 7, 2000 at the latest. The manufacturing and storage of patented medicines regulations were revoked in accordance with this decision.
In September 1999, a special WTO panel was struck to address a claim by the United States that the protected period conferred by a Canadian patent as the result of an application filed prior to October 1, 1989 was incompatible with the obligations under the agreement on TRIPS. The same thing is happening today with the United States, as in the example of the softwood lumber agreement.
According to the United States, under the agreement, the protection conferred by a patent is for a minimum of 20 years from the date the application was filed. Patents granted in connection with applications filed prior to October 1, 1989, those granted under the old legislation, with a duration of 17 years from date of issue, would therefore be contrary to the agreement on TRIPS, if that period of 17 years from date of issue is shorter less than 20 years from date of filing.
This argument applied to patents under the old legislation that were issued within three years of the date of filing.
As a result of the position the United States has stated, Canada maintained that the patents granted under the old act enjoyed essentially the same protection as those granted under the new legislation, and that the provisions of the TRIPS agreement on the term of protection did not apply to patents granted before the coming into effect of the agreement.
In October 2000, the WTO ruled in favour of the United States. It felt that the term of protection for patents granted under the old act was not compatible with the TRIPS agreement in the case of patents granted during the three years following the date that the request was made. I am referring to section 5.
Bill S-17 would amend the Patent Act to comply with the rulings issued by the WTO following the challenges by the Europeans and the Americans concerning certain provisions of the act.
The Bloc Quebecois supports these changes. It is clear that the protection of intellectual property must go along with technological and pharmaceutical advances.
However, it is unfortunate that Canada had to appear twice before the WTO's tribunal to solve this dispute, which is, after all, a minor one. There are much more fundamental issues with which the tribunal should be dealing.
I am thinking, among others, of the lumber issue where, even after registering several victories, Canada literally caved in to the Americans by imposing quotas on Canadian and Quebec lumber producers. The agreement on softwood lumber expired on March 31 and we could again find ourselves before the WTO's tribunal, which will have to deal with this problem for the fourth time. Needless to say, this is a critical issue for our lumber producing regions.
The Minister for International Trade ought to stand up to the Americans, in my opinion. Someone should give him something to make him strong enough to tell the Americans that the only possible solution, in the short and the long term, is a return to full free trade.
I will conclude by saying that the protection Canada must provide to researchers regarding their inventions must comply with international agreements. However, Canada could go even further, since it is lagging behind the United States and the European Union. Nevertheless, I will be pleased to support this bill.