Debates of May 10th, 2001

Patent Act

[An hon. member]

They were right.

[Svend Robinson, NDP, Burnaby—Douglas, BC]

They were absolutely right, as my colleague says. I recall in 1992 when Bill C-91 was brought before the House, again by a Conservative government. The now Minister of Industry, the member from Newfoundland, was up on his hind legs spitting nails and demanding that the government stand up for seniors, for the poor, for provincial drug plans, and oppose the draconian legislation.

What have we seen since then? The liberals got into government and in one of the most pathetic scenes I have seen in many years the Minister of Industry turned himself inside out, grovelled in front of Brian Mulroney over in Davos, Switzerland, and said he was sorry and that Mr. Mulroney was right. It was pathetic.

Would the member for Churchill like to comment on the record of the Liberal Party on this issue? If there were some other comments that she was not able to get in, I would be glad to hear them as well.

[Bev Desjarlais, NDP, Churchill, MB]

Mr. Speaker, I have seen the actions of the new Minister of Industry in the House and know his historical background with regard to the issue. Yes, it is extremely pathetic. There is absolutely nothing worse than a politician who says one thing prior to an election, who says one thing while in opposition, and then does something else.

That kind of attitude and that lack of principles result in people having no faith in a democracy and a parliamentary system. For the sake of getting elected they mislead and try to pretend they are there to do what is best for Canadians. Then they get into government and tell Brian Mulroney that they are sorry, that he was right. I guess it must have been the two Brians. That must have been what did it. It is disappointing.

I want to reflect upon my colleague's comments when he mentioned Bill C-22 and Bill C-91. The difference between when those bills came up and this one came up is that the government is sneaking this one through the Senate, allowing next to no discussion nationwide on the issue. That is what is happening. Now it is in a panic state, will impose closure and do whatever because that is the way the government operates.

The issue is important to all Canadians, to seniors most definitely. Some of the most vulnerable people have been faced with huge increases in energy costs and a lack of government funding in numerous areas. It is extremely disheartening to see the government imposing an even greater expense on them. It is absolutely unacceptable.

I expect a good number of seniors to be around at the next election. They are a stalwart bunch and they will weather the storm under the government. I want them to remember, especially those seniors in Ontario, how the Liberal members voted on this bill.

[Leon Benoit, Canadian Alliance, Lakeland, AB]

Mr. Speaker, I agree with the member's comments about the government making promises during campaigns and then not respecting those promises. We saw it on the GST. We saw it on the free trade deal.

The member also made some comments about the Canadian Alliance critic never having enough good words to say about the government on this issue. I suggest that the Canadian Alliance critic was saying that because this was agreed to in NAFTA, in the free trade agreement, we can continue to have this special trade agreement and relationship with the Americans and we have to respect the agreement.

Would the member be willing to have Canadians in her constituency, thousands of them, lose their jobs because we do not respect the trade deal? Is that what the member is suggesting should happen?

[Bev Desjarlais, NDP, Churchill, MB]

Mr. Speaker, absolutely not, but I do not think we should go into those negotiations on our knees, begging. We have a great nation. We have a great supply of resources. We have everything to be proud of. We do not have to grovel when we are in trade negotiations. Nobody is opposed to trade agreements.

The Alliance Party is often saying that parliament should decide what is happening within the country. Parliament should decide what happens, not trade agreements made by people who are not elected. That is the issue.

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, I wholeheartedly agree with the member for Churchill and the member for Burnaby—Douglas.

Barely two weeks ago we were in Quebec City with 60,000, 70,000 or maybe even 80,000 people marching for democracy. They were trying to take down the wall and trying to be heard. I think it is important to note that the central issue underlying that process was about defending our democratic system. It was about defending the right of democratically elected parliaments, legislatures or even municipal governments, to uphold the public interest and to make decisions that benefit the public interest.

I take note of what happened in Quebec City because the opposition to the FTAA is directly related to the debate we are having in the House today on Bill S-17 and the drug patent law. We have probably the clearest example of the tail wagging the dog.

We have the Government of Canada rushing around to change its legislation to meet what? Is it something based on public debate and discourse in the country? No. It is something based on a World Trade Organization tribunal ruling.

There is the evidence of what we are up against in the country as a result of the capitulation by the government to international trade agreements that are literally, as my colleague from Churchill said, bleeding away not just people's ability to access prescription drugs in a reasonable and affordable way, but bleeding away our ability to make decisions about our country, decisions that affect how Canadians live, our quality of life and in whose interests we speak in the House.

I feel very strongly that I need to say loud and clear to Canadians that every single member of the New Democratic Party was in Quebec City marching for democracy and upholding the public interest, and we are in the House today to fight the bill. The NDP is the only party in parliament to do this, because we in our party understand that the bill is very wrong.

We have heard some of the history of the bill. It is not just something that has popped up out of the blue in the last few months. It goes back to 1987 and the glorious days of the Mulroney government, which started changing the laws to favour these massive pharmaceutical companies by changing the patent rules.

Let us be very clear about this. It is about creating legislation that favours the profit making interests of very large pharmaceutical companies at the expense of providing accessible, generic prescriptions and drugs to Canadians. This is now taking place on a global scale.

That happened in 1987. As has been so eloquently pointed out by my colleagues, it is very sad to see the hypocrisy that takes place. The mighty Liberals who took on the Mulroney government in 1987 and again in 1992 seemed to understand that those laws, Bill C-22 and Bill C-91 in those days, were a great threat to our public health care system and to Canadians' accessibility to affordable drugs.

Where are the Liberals on this issue now? They are not even neutral on the question. They have completely come around 360° and are now peddling the interests of those same pharmaceutical companies that 10 years ago they were speaking against. Then years ago they clearly outlined their concerns about this.

A few weeks ago before the summit of the Americas in Quebec City, I attended the foreign affairs committee meeting. The witnesses who came forward spoke directly to the issue of intellectual property rights, as they are called, and the so-called rights of these companies to restrict access to the generic versions of their drugs.

At that committee I heard a man speak. I forget his name. He was very smooth. He was the chief spokesperson for the pharmaceutical association. He had the gall to say that trade agreements like the FTAA and the orders that come from the WTO, which prompted this legislation, improve the quality of life for all people around the globe, that intellectual property rights and trade agreements actually improve quality of life.

I sat there thinking how far removed from the truth that was. If anyone needs evidence of that, we have only to look at what took place in South Africa, where 39 pharmaceutical companies were actually forced, through public pressure, to withdraw their claims against the South African government.

Millions of people who live in sub-Saharan Africa are dying of HIV and AIDS. Millions of people in Latin America or Central America and around the globe are desperately in need of essential medicines, not just in terms of HIV and AIDS but for things like TB or hepatitis C. These people understand that these trade agreements are not about improving the quality of life for ordinary people. They are not about improving the quality of life for poor people or people who are sick. This is about conferring greater concentrated power to those multinational corporations and the government is allowing to happen through the bill.

That is why we stand today in absolute opposition to what is taking place. I would like to point out to Canadians that the consequences of what would happen because of the bill are very dire indeed. What would the consequences be? Extending the patent from the current 17 years, which is bad enough, to 20 years, as well as prohibiting generic companies from stockpiling drugs, means that the most likely thing that would happen would undoubtedly be a dramatic increase in prescription and drug prices for Canadians. There is no question about that.

As this debate continues and the issue continues to unfold, we in the New Democratic Party have a very great resolve to work with other organizations, the labour movement, the Council of Canadians, environmental groups and seniors' groups, who understand what is really at stake here. We have a role to play in parliament in trying to defeat this kind of legislation, but we also have a role in working with a broader community and bringing pressure to bear.

Maybe one day we will get to the point where we have the kind of mobilization that took place in South Africa in defeating the multinational corporations who were seeking litigation to prevent people from accessing essential medicines. Maybe one day we will see that type of challenge in Canada. At the very least today, we have to stand in opposition to this legislation. We think it is bad legislation and is nothing more than conferring greater concentrations of power and profit to fewer multinational corporations.

Surely that cannot be in the public interest. I defy any member of the House to stand up and tell us how this can be characterized as being in the public interest. The evidence, going back to 1987 and 1992 and now to what has happened with the FTAA, tells us that the opposite is true, that this is a bad piece of legislation. It must be defeated, as must these international trade agreements that undermine the ability of our governments to make the very kinds of decisions that would ensure this legislation would not go ahead.

[Keith Martin, Canadian Alliance, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, I can certainly understand and support some of the comments the hon. member made with respect to ensuring that any agreements to be negotiated pass through the House and that the Canadian public should be made very aware of and be knowledgeable about what is being negotiated, how it is being negotiated and what the principles are.

Quite frankly, though, with respect to the other comments about trying to defeat the free trade agreement and trying to demolish free trade, what is the member thinking of?

Kofi Annan, the secretary general of the United Nations, and leaders of poverty groups in South and Central America and in Africa want trade. They want the obstacles and the barriers to trade removed. They said if there is one thing they want it is trade, not aid. For heaven's sake, they said, remove the barriers to trade that prevent us from maximizing our potential.

Opposition to free trade is opposition to the poorest people of our hemisphere and in this world of ours. It is opposition to them being able to get on their feet. The alternative to free trade is a country like Albania or the former U.S.S.R. I ask the member how can she justify being against free trade when the people behind the free trade agreements are trying to deal with fair labour laws and good environmental laws and trying to improve the lot of the poorest people in our hemisphere.

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, I certainly appreciate and welcome the comments from the member for Esquimalt—Juan de Fuca. However the member knows full well that the issue here is not trade just as a word. Trade has existed for thousands of years among peoples whether they were part of a nation or not. Trade is a part of who we are as human beings. The issue we are debating through this legislation and under things like the FTAA is the issue of the rules that are created around those trade agreements.

For example, there are rules that create such restrictive policies around intellectual property rights that we end up with a piece of legislation such as this which will actually deny people access to affordable drugs in Canada. Surely that is what the debate is about. Let us not send up smokescreens and say the NDP is against trade.

If the hon. member has listened to any of the debates in the House he will know that the NDP has advanced a position on a policy of fair trade based on respecting the dignity and rights of all people. The NDP has a policy of trade that respects the authority of parliament to make decisions in the public interest.

I will say again that this piece of legislation is the complete opposite of that. The House is debating the legislation because the WTO, and who the heck is that, has dictated that it shall be done. Is that not wrong? I believe it is.

[Brian Fitzpatrick, Canadian Alliance, Prince Albert, SK]

Mr. Speaker, I did not intend to become involved in the debate, but I just cannot resist it. In 1945 at the end of the second world war, two Asian countries made choices. India made a choice to throw up barriers and be an island unto itself. Another country had another option and that was to become a global trader. That was Japan. Since the destruction of Japan in 1945, the Japanese have made their economy the second biggest in the world.

The NDP member seems to suggest that there are no advantages to trade or competition. Would anybody seriously say that the auto industry in North America is not better today because of Toyota or Honda and that the products we have in the automotive sector have not been improved because of that type of competition? That really seriously ignores a lot of reality.

Another area that was raised is the issue of intellectual property, which is what I will pose my question on. In regard to drugs, I know of companies that have spent up to $600 million or $700 million on research into new drugs which were never approved. I invested in some of those companies. I know what their stock was worth when it was over.

I am asking the member to explain how in the world we are going to get new breakthrough drugs that provide effective treatment for a lot of diseases if the people who are taking all the risks—

[The Acting Speaker (Mr. Bélair)]

The hon. member for Vancouver East.

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, I will briefly respond. Perhaps the member did not listen to the whole debate. I clearly articulated the position of the NDP, which is not that we are somehow opposed to all trade. We are talking about the need to create trade deals that have fair rules attached to them. That is the essential point.

As far as the member's second point is concerned, unfortunately it seems like he has really bought the line of the pharmaceutical companies. Yes, we need research to be done, but why do we need to create so many restrictions which allow them to monopolize an industry and create a scenario whereby people cannot afford to pay for their drugs? This is the problem we face.

[Bill Blaikie, NDP, Winnipeg—Transcona, MB]

Mr. Speaker, this bill is very important to our party. We have indicated to the government that we do not intend to hold up this debate for much longer, and we appreciate the government's co-operation in this matter.

For us the bill and the issues that it raises with respect to trade agreements and drug pricing go to the heart of our objection to what has been going on in this country for the last 10 to 15 years. I guess it has been 14 years if we go back to 1987 when the first bill on changing the drug patent legislation in Canada first came before the House of Commons.

At that time it was a Progressive Conservative government under the leadership of Prime Minister Brian Mulroney. A bill was introduced to reduce and transform the way in which we had constituted our drug patent and drug pricing policies in this country. Until that point, we had a policy which had been established some decades before whereby generic drug manufacturers could bring onto the market generic imitations of new brand name drugs after only two years.

This was one of the reasons why we had one of the most envied health care systems in the world, not just in terms of quality but also in terms of being able to keep costs down. We did not have to pay these exorbitant brand name costs or at least we did not have to pay them for very long. We only had to pay them for two years, then after that our health care system could begin to use and doctors could begin to prescribe these new generic replacements. Of course the brand name drugs were still available and could still be used.

In 1987 we understood, and we still understand, as a prelude to the free trade agreement negotiations between Canada and the United States, the Conservative government at that time, in a very strange form of negotiation, made a big concession before it even got to the table by giving into the Americans on this particular issue. It was not just to the Americans. There were a great many French multinational drug companies and others that were involved. We were very much against this at the time. We were against it again in 1992, when Bill C-91 was brought in. I believe the bill in 1987 was Bill C-22.

We were against it then and today we are against Bill S-17 which is part of a sequence of bills that have progressively eliminated the ability of Canada to have its own independent drug patent and drug pricing policy. The fact that we could not and cannot maintain a system that worked so well for Canada, which was the result of a political decision taken in this country many years ago, is for us transparently what is wrong with the free trade agreement. The fact is the rights, privileges and profits of multinational drug companies come first. The rights, the privileges and the health of Canadians insofar as their need for access to cheaper drugs and collectively in terms of their need for a health care system that is less costly rather than more costly comes second.

Property is put before the public interest in such a blatant way that even the Liberals when they were in opposition could see this. Or did they? We have spent a fair bit of time and appropriately so pointing out that the Liberals have changed their position.

However I maintain that at another level it is not so much that they changed their position, it was the fact that they were insincere in their opposition to Bill C-22 and Bill C-91 in the first place, in the same way they were insincere in their opposition to the free trade agreement, with the possible exception of their leader at the time in 1988, Mr. Turner, who I have come to the opinion was sincere in his opposition to the free trade agreement. At the same time, he led a party that was full of people, some of whom later became Prime Minister and Minister of Finance, who were not opposed to the free trade agreement.

I believe now that they were not genuinely opposed to Bill C-22 and Bill C-91 at the time because they knew, as we know, that the Liberal Party ultimately would do the bidding of the big business community. There are few businesses in this country and internationally that are bigger than the multinational drug companies.

It is not just that they do the bidding of these companies, the problem is now the bidding and the interests of these multinational drug companies is enshrined in international trade agreements, like the World Trade Organization. Now these interests can be advanced without there being a political decision or without anybody having to take responsibility for it. Nowadays, all the drug companies have to do is invoke the WTO and no governing political party takes any responsibility for it.

The Liberals get up and say they have to respect our international obligations and that they have to respect the trade agreements that they have signed, never mind that, at least with respect to NAFTA and the WTO, it was the Liberals who signed Canada on to the NAFTA and the WTO. Why did they sign these agreements if they were sincere in their opposition back in 1987 and 1992? Only they can answer that, and we look forward some day to an honest reckoning of just what happened along the road to corporate Damascus on the part of the Liberals.

For us, although the bill implements a certain ruling of the WTO and is a smaller ruling than the larger ruling in the first place, it is all part and parcel of a trend in international and regional trade agreements that gives priority to the interests and the profits of big business, in this case large drug companies, over the interests of the Canadian people and of people all around the world.

Look at the struggle that was fortunately just won in South Africa where the drug companies invoked their patent rights to prevent the distribution of medicines that treated the disease of AIDS.

While I am at it, I asked a question in the House not so long ago. It had to do with emerging therapies and treatments related to gene therapies. I asked the Minister of Health what the government would do.

There are many people in the medical community who are worried that the same thing that has been done with drugs by the kinds of things we are debating today will be done with these gene therapies, and that some time in the future any time we use a particular gene therapy we will have to pay a royalty to some big drug company that invented that gene therapy in the first place. This will become another burden on our health care system. It will become another argument for privatization, more private sector money and more user fees.

However I asked the question of the Minister of Health, and for me this was very symbolic, because I thought it was a health issue. I thought that distributing cures, therapies and medicines is something over which the Minister of Health ought to have some kind of ultimate authority. Who rose in his place to answer my question or should I say who rose in his place to not answer my question? It was the Minister of Industry.

I am not surprised that I did not get an answer. I suppose I should not have been surprised that it was the Minister of Industry who got up and said that it was a very interesting question, blah, blah, blah. The fact that the government sees this as an industrial question really had already answered my question.

This is a new territory. It is fine if the Liberals wanted to say that perhaps drugs are history and maybe it should be dealt with by the WTO, but there is a whole new area that they must stand fast on, and that is to not allow these new gene therapies to be taken over by the philosophy that they are private or corporate property and should be distributed on the basis of what is in the best interests of the profit margins of the companies involved. They could take a stand there if they did not want to go back and rewrite their own history. They are not even willing to do that. They see it as an industrial matter rather than a health matter.

For all these reasons, we feel it is unfortunate that there seems to be this consensus in the House, a consensus of which we are not a part, and that this is something that is beyond criticism. It reflects the political monoculture that has developed in the House of Commons among the Bloc, the Alliance, the Conservatives and the Liberals, all part of a seamless apology for corporate interests, with only the NDP standing here in our place saying that there has to be another way to look at drugs, at health.

Is there no other way of looking at drugs and health that will not put corporate interest first and people second? We believe there is. We think we had that before the Conservatives and then the Liberals moved to destroy the generic drug regime that we had in place. We feel that we can have that again if we had governments around the world that were willing to stand up to corporate interest, instead of engaging in these acts of self-inflicted powerlessness by which they give up the power that they once had as governments to act in the public interest.

The governments give up their power to trade agreements. Then when these trade agreements kick in years later and impose certain conditions on them, they do not know what to do as they are just living up to their international obligations. They may be international obligations now, but they were political choices at one time that governments made and that the people had at one point but they no longer have.

We want a government that works for the day when those kinds of political choices return to parliament and the Canadian people so they can decide what kind of generic drug regime they want rather than leaving it in the hands of trade bureaucrats at the WTO who are lunching constantly with the drug manufacturers and not lunching with the people whose health care system will be drastically affected by their decisions.

[Dan McTeague, Liberal, Pickering—Ajax—Uxbridge, ON]

Mr. Speaker, unfortunately, I did not have the opportunity to take part in this debate lately. I was at the Standing Committee on Industry, Science and Technology, which is studying other issues. It will be impossible for me to make a long speech, of course, but I have a few questions for my colleague from Winnipeg—Transcona.

I understand the frustration of the member. Of course the member will remember my work, not only in the House of Commons as a member who was elected in 1993, but also my role in 1995 on the Standing Committee on Scrutiny of Regulations when I single-handedly attempted to bring down the notice of compliance, which was not part and parcel of what the House of Commons had voted for, and the manner in which the industry committee had treated it in 1992 when we were dealing with Bill C-91.

I cannot very well go back and change what has occurred, but I would like to ask two specific questions of the member on where I believe the House of Commons can act with some force and decisiveness.

First, I will deal with the supreme court decision of 1998 which dealt with patented medicines and notice of compliance regulations. In that decision Justice Iacobucci said that section 55 of the Patent Act, which allows drug companies to claim an infringement and effectively maintain a 20 year patent period before allowing generic companies to make cheaper copies of new drugs, has been a question of contention.

The hon. justice suggested that

It would be manifestly unjust to subject generic producers to such a draconian regime without at least permitting them to protect themselves by reducing the length of the injunction and initiating the NOC process as early as possible.

I would like to hear the comments of the hon. member. This is an issue we can address and it is certainly on the table in terms of the bill. We know why Bill S-17 was concocted with respect to WTO.

Second, and the hon. member has touched on it with respect to South Africa, does he see an opportunity here for the government, in concert with parliamentarians, to allow a return to compulsory licensing to address the AIDS pandemic in Africa and other places around the world? More specifically, could the government, guided by CIDA, allow a return to compulsory licensing in order to bring down drug costs? That would be the Canadian way.

[Bill Blaikie, NDP, Winnipeg—Transcona, MB]

Mr. Speaker, the point the hon. member has made about the supreme court opinion is well taken. I am sorry he was not able to persuade his own government to include something in the legislation to deal with that. Perhaps that is what the hon. member has in mind for when the bill gets to committee. Perhaps he will go to committee and argue for changes or additions to the bill that reflect what the supreme court had to say on the matter.

With respect to South Africa, I am not sure what the hon. member means when he talks about acting through CIDA to return compulsory licensing. However, I hope, and I am sure the drug companies do not hope it but I do, that the backing down of multinational drug companies with respect to South Africa and their willingness to overlook or transcend their immediate self-interest and patent rights to deal with the AIDS epidemic will become not only a legal but a moral precedent.

Such a moral precedent could instruct the international community, governments that participate in constructing international agreements and citizens around the world that if a sufficient moral argument is made we might someday reverse the way various trade agreements have entrenched property rights over the rights of the sick.

[Scott Brison, Progressive Conservative, Kings—Hants, NS]

Mr. Speaker, it is with pleasure today that I rise to speak to this important legislation.

When applied to drug development and production, the whole notion of intellectual property protection becomes a very divisive issue that in many ways pits the right to patent protection and commercial opportunities for Canadians and Canadian pharmaceutical companies against the need for cost effective access to these technologies.

It is important to recognize that without investment in research and development there would never be a debate on how best to enable important pharmaceutical developments to reach people.

Whatever public policy we put forward regarding intellectual property, patent protection and commercialization, we must be careful not to reduce incentives to the point where we stifle the development of leading edge drugs and treatments that ultimately benefit all Canadians. At some point these technologies and pharmaceuticals become commodities and the generic industry plays a role in that as it occurs.

This piece of legislation, like so many others passed by the Liberals, identifies and in some ways exemplifies the hypocrisy that pervades the government. The government says the WTO ruling has no significant or sustained impact on drug costs. It says the impact of the ruling over the eight year horizon is equivalent to less than 1% of pharmaceutical sales in a single year. It says Canadians will continue to have access to affordable drugs at prices below those of the U.S.

These arguments sound eerily similar to those presented by the Conservative government in the early 1990s, arguments which were rejected by the opposition Liberals. The current Minister of Industry and self-promotion was the Liberal opposition's key spokesperson against using patent and intellectual property protection as a vehicle for promoting a more successful Canadian pharmaceutical industry and greater economic growth.

This is a 180° shift in the position of the Liberals. It is completely consistent with their inconsistency on free trade, the GST and others issues. I will quote the colourful language used at that time by the current Minister of Industry and self-promotion. In the early 1990s he said:

The citizens will need more than generic drugs to recover from the festering wounds which are about to be inflicted on the exposed ankles of Canada's poorest citizens when the Minister sinks his teeth in, past the bone, into the marrow and sucks the lifeblood out of Canada's poorest citizens with Bill C-22.

That was the statement of the then Liberal opposition member who is now the Minister of Industry and self-promotion. Was he referring to the minister at the time or to himself? Could he look into the future and see that he would become a minister and eagerly embrace the policies he vociferously opposed in opposition?

The Minister of Industry has stated on several occasions, and most recently at an economic conference in Davos, that he was wrong about the policies he espoused and opposed while in opposition and that the Conservative Party had been right. Perhaps through action he is now making the same admission.

It is in some ways annoying and upsetting for Conservatives to see Liberals embrace policies they had opposed in opposition and then take credit for the results. However we would prefer that they steal Conservative policies and take credit for the results than implement their own policies, which could in the long term have a far more negative impact on the country.

While it is important to point out their hypocrisy on these issues it is also important to credit them with extraordinary intellectual flexibility. They are at least intelligent enough to swallow themselves whole and recognize that some policies introduced by the previous government have made their lives a heck of a lot easier.

Woody Allen once said that 80% of life is just showing up. For seven years the government has done just that but for probably closer to 90%. For the Prime Minister it is probably 95%. I am not talking about golf; I am talking about governing.

We must walk a fine line. We must provide enough patent protection to allow the pharmaceutical industry and the emerging biotech industry to grow and prosper and develop new technologies which have such potential for the future of humankind. However we must also ensure that new medicines and pharmaceuticals reach the public in the most cost effective and timely way. It is a difficult balance to maintain.

Our current patent protection in Canada by and large strikes a reasonable balance. Our policy is not working badly and has created economic growth in the leading edge, knowledge based industries of pharmaceuticals and biotechnology. That being the case, we should be looking at ways to create a more effective balance between the two policy priorities.

The Economist magazine about three years ago published a study conducted in the U.K. about a policy which could balance the need for patent protection with the importance of getting pharmaceuticals into the hands of those who need them in the most cost effective way.

It involved an auctioning process whereby when pharmaceutical companies announced new drugs or medical treatments governments would have an opportunity to bid on them. Governments would of course pay a significant price for the privilege by recognizing the public good of making pharmaceuticals more widely available. They would then make them available to the generics in order to provide lower cost access to the consumer.

We should at least consider doing it that way or investigate the matter as part of the debate in order to balance patent protection and economic opportunities for pharmaceutical companies and biotech companies while making these new pharmaceuticals available more expeditiously to the public. We should be engaging in a debate that would find ways to bring these two divergent interests together in a more realistic way.

The other aspect we have to consider is the emergence of Canada's biotechnology sector. Around the world biotechnology is one of the key components of information technology within the knowledge based industries, which are becoming so important to our global competitiveness.

Canada has demonstrated some significant strengths on the biotech side which capitalizes on our post-secondary university infrastructure. In Nova Scotia we have 11 degree granting institutions. Those universities, which were at one point seen as a cost, are now in a knowledge based economy and seen as an asset.

If members looked at the symbiotic relationship between the small biotech companies and the big pharmaceutical companies, they would recognize that this is not simply an argument about big business and big pharmaceutical companies versus consumers. The notion that only the big pharmaceutical companies benefit from patent protection is a specious argument.

If we were to reduce patent protection and take an aggressive approach that would reduce the incentives for pharmaceutical companies to develop new drugs and treatments, we would be significantly hurting the biotech companies. They are, by and large, small companies and involve our post-secondary institutions across the country. We must be very careful not to do something from a political perspective that would have a negative impact on Canada's competitiveness in biotechnology.

We must also consider a second argument. How do we get new drugs or pharmaceuticals into the hands of Canadians faster? If we cannot ensure an environment within which those new technologies can be developed in the first place, the second discussion is a moot one. It would be a terrible step backward for the government to reduce, in any way, shape or form, the incentives we have in place to encourage the leading edge development of new pharmaceuticals and new advancements in biotechnology.

Some provinces have been more successful than others in terms of creating a critical mass of activities in these areas. This is one of the areas where significant growth can be achieved in the future both on the biotech side and in pharmaceuticals. We must focus on our medical schools and our undergraduate programs in terms of science and research.

I am pleased to see that the government has in fact recognized the error of its ways in the past. It has embraced and continues to support and foster Progressive Conservative policies with the introduction of this legislation.

I hope we will have an opportunity in the future to discuss some of the other alternatives that could balance more effectively the needs of consumers and patients. It is important to create a greater level of commercialization, intellectual property protection and opportunities in Canada.

The government has not been as creative as it might have been in studying more carefully some of the alternatives that are available in terms of moving forward in a more innovative way in that regard.

[Dan McTeague, Liberal, Pickering—Ajax—Uxbridge, ON]

Mr. Speaker, I was interested in the member's comments about trying to find the balance between consumers and patents as well as the need to ensure that Canada remains competitive globally from the perspective and interest of intellectual property.

I too am somewhat confounded by how we have changed over the past few years. I was also interested to hear many of the comments made by his Conservative colleagues in the Senate who also have demonstrated a rather interesting perspective that is far different from the enthusiasm that was expressed by his party and his colleagues. Perhaps they are more sensitive now because of their age, being at the point where they may have to use some of these therapies and drugs.

Since the hon. member will be sitting on the industry committee with me, will he take some of those enlightening comments from his Senate colleagues to the committee? His Conservative colleagues in the Senate have sent a number of caution flags, particularly in the area of infringement.

Infringement goes well beyond Canada's obligations to the WTO and beyond the question of honouring a lengthy drug patent regime that is competitive by any international standard. Will he speak in the industry committee and in the House about the need to ensure that evidence brought forward on the basis of a claim of infringement be not based on any prima facie evidence that has to be brought before court? Will the hon. member raise that issue and try to advocate it? The opportunity to do that is now with Bill S-17.

[Scott Brison, Progressive Conservative, Kings—Hants, NS]

Mr. Speaker, the senators in our national caucus have advanced some important ideas on the legislation. Certainly we should be discussing some of them in the industry committee.

I would argue that some of our senators' aversions to stronger patent protection has very little to do with their age. The fact is that once one is in the Senate aging ceases to a considerable extent and the quality of life issues there help preserve mental acuity, health and life for a lot longer. The differences in age between some of our senators and some of the members of our elected caucus really do not play into this in real terms.

[Keith Martin, Canadian Alliance, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, I compliment my friend for his eloquent speech. I would like his response to a very important issue dealing with access to essential medication in developing countries. This was brought up by the NDP and it is an important issue.

We just saw the recent court battle in South Africa over access to anti-HIV medications. HIV is one of a series of diseases plaguing developing countries for which there are very simple, cheap and easily distributed drugs that could have a widespread and positive effect on the lives of these people. The research based pharmaceutical companies have a program that enables developing countries to get access, but much more has to be done.

What can be done to enable Canada, perhaps CIDA, to work in partnership with the research based pharmaceutical companies and the generic companies in order to provide access in developing countries to essential, cheap medications that can have a profound effect on some of the terrible scourges that plague these countries, such as TB, kala azar, river blindness and malaria?

[Scott Brison, Progressive Conservative, Kings—Hants, NS]

Mr. Speaker, the member has identified an area of public interest and public good that is extraordinarily important. It is the availability of these pharmaceuticals in developing countries where the need is so great.

We have to find ways to balance the profit motivation of research based pharmaceuticals with the public good of having the drugs available to people in more cost effective and timely ways. That is where government can play a role. If we look at the long term cost of treatment with leading edge pharmaceuticals versus not doing anything at all, it is a better investment to treat them. The member, as a physician who has worked in developing countries, is absolutely right in suggesting that CIDA could play a role.

The governments of Canada, provincial and federal, could work together to play a role in ensuring that the profit motivation is not weakened for the research based pharmaceuticals to develop the new technologies. Developing new drugs is a lot like mineral exploration. A lot of holes are dug before hitting a vein of minerals. No pun intended on the vein.

Drug research is expensive and not all research initiatives actually yield results. We should not do anything to reduce the financial incentives that create opportunities in biotechnologies and pharmaceuticals but we should be addressing in a more innovative way the question of what role government has in ensuring the public good and by facilitating the public's access to the drugs in a cost effective and timely manner.

I proposed for consideration the notion of having governments purchase the technologies through an option process once the technologies are developed. This is similar to a proposal published in the Economist about three years ago. There was a study done on it and it is one area of debate that we should consider and be engaged in. It would be a way to balance the profit motivation of private interests to ensure that we continue to develop the leading edge pharmaceuticals that we need.

It would also ensure that governments have a role in delivering new technologies and pharmaceuticals to the public whether they be here or in developing countries where the need, as the hon. member suggested, is absolutely critical. We can make strong arguments in favour of a government role on the second part of the issue. The priority should be, once the drugs are developed, to get the drugs to the people who need them the most whether they are in our country or in the developing world.

[Rick Borotsik, Progressive Conservative, Brandon—Souris, MB]

Mr. Speaker, I have to say that the member speaks this much in caucus as well. He rambles and goes on and on. However, he does have an awful lot of intelligent things to say. I would like to make two comments and have the hon. member for Kings—Hants respond.

He gave a scathing critique on the Minister of Industry regarding his flip flop on his position respecting the legislation. Does the member believe that the Minister of Industry has actually had a philosophical mindset change, that he now embraces the legislation, or does he see it as a bit of political theatrics on the part of the minister? I hope he can answer that.

The member talked about the need for huge capital investment in research and development. If the bill is not approved, is it his opinion that a lot of the research and development dollars that are in this country now would flee the country if companies did not have the patent protection that would be in place through this proposed legislation?

[Scott Brison, Progressive Conservative, Kings—Hants, NS]

Mr. Speaker, when the whip of your party says something nasty about you in this place, you are really limited in terms of your response. Therefore I guess I will not even talk about the first part of that question and comment.

On the political question about the current Minister of Industry and self-promotion, I would argue that for the individual to have had a philosophical change in mindset would, first, require a philosophy and, second, a mind. I have not seen a tremendous degree of evidence in support of either.

In terms of capital investment, I fear that if we reduce the incentives for leading edge, or in this case bleeding edge, development of pharmaceuticals and biotech in Canada, we will reduce and drive the much needed capital and investment from Canada. It is not just taxes that redistribute investment. It is also regulations, particularly in the areas of intellectual property and knowledge based economies.

I think the hon. member is absolutely right. We would be taking a huge risk of losing a lot of that investment, productivity, growth and opportunity for Canadians.

[Jocelyne Girard-Bujold, Bloc, Jonquière, QC]

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.

[Réal Ménard, Bloc, Hochelaga—Maisonneuve, QC]

Mr. Speaker, I am very happy to speak after my hon. colleague from Jonquière who, as we know, has a profound interest in consumers and people.

I was saying to my colleague, the hon. member for Lac-Saint-Jean—Saguenay, who has been, in our party and to some extent in this parliament, a leader as far as the globalization issue is concerned, that if we were looking for an example of globalization affecting the national sovereignty of a state, we could take this debate.

Let me explain. Canada signed a number of World Trade Organization, WTO, agreements, including one on the protection of intellectual property rights and trade. As we can understand, patents are linked to intellectual property. A patent is what somebody who has developed an invention applies for in order to have exclusivity for a number of years.

About a year ago, the WTO handed down a ruling concerning Canadian patents. This ruling followed a challenge by the United States about some form of unfair competition. The mechanisms in place within the WTO have played their role. There are appeal mechanisms.

There are many references to these in the bill. My hon. colleague from Jonquière probably mentioned it already. The bill refers to the dispute settlement body, or DSB, of the WTO.

The dispute settlement body gave a ruling that was not in Canada's favour. Two pieces of legislation were passed, Bill C-22 and another law we reviewed more recently, four years ago. The Canadian Patent Act provides for a five year review.

There are two types of patents. The patents that existed prior to 1986 are protected for 17 years. Those that date from after 1986 are protected for 20 years, under the latest legislation we have passed. I was a member of the committee reviewing the law, with the member for Témiscamingue, whose unfailing devotion to the brand name drug industry is well known.

The ruling was given. It came out that there are two types of patent in Canada: those protected for 17 years and those protected for 20 years. This was seen to be inconsistent with a specific treaty signed under the WTO, the agreement on trade-related aspects of intellectual property rights.

Arbitration followed, with the Americans calling for binding arbitration. I hope the government House leader is listening, because I read the entire defence produced by the Government of Canada. There was doubt as to Canada's ability to produce its legislation within a year, because it said it was not sure of having a parliamentary majority.

That made me laugh. I told myself “We are now giving the opposition a power that it is usually not entitled to in other circumstances”. Anyway, the binding arbitration requested and obtained by the United States forces Canada to change the Canadian legislation by next August. The government has no other choice but to change the legislation.

As the member for Lac-Saint-Jean said, that is when globalization is impacting on us as parliamentarians. We have not freely decided to change the legislation, quite the opposite. When Canada set up the five year revision of the Patent Act in the industry committee, it had not chosen to make such a change. We have to recognize that globalization curtails parliamentary sovereignty.

There are of course settlement mechanisms. In this case we lost, but in others we win, and I accept that. I am not questioning the free trade agreement. That is not the point at all, but we have to understand the reality. The member for Lac-Saint-Jean raised the issue of MPs' privileges in the context of globalization. I am sure that when he addresses the issue in the future, he will give the example of the Patent Act.

I understand fully the whole issue of the research on brand name drugs as far as Quebec is concerned. There are two main types of research being conducted on drugs. There is research on brand name drugs. It involves cycles of up to five or ten years. The researchers working on brand name drugs were telling us that for each drug produced, marketed and authorized by Health Canada, the research cycle can cost up to $170 million. Quebec excels in the area of brand name drugs. It is one of its industrial clusters.

Another facet of this reality, if I can call it that, is the research on generic drugs, that part of research which takes the molecule once it exists and copies it according to very specific rules.

I hope that in the coming years we as parliamentarians will have a debate on the cost of drugs. I support wholeheartedly the principle of a research infrastructure for brand name drugs. I understand that when one invests $170 or $200 million, one expects a return on that investment; it is normal. However, I hope that we will also take the consumer into account.

In the future, it will not suffice to ask ourselves as parliamentarians if we have an adequate research infrastructure. Whether or not the research infrastructure is adequate, if the drugs are not available to the consumers, we ought to be concerned and raise the questions.

This morning, I met with representatives of the generic drug industry. People know how I am. When people ask for a meeting, I always say yes. That is the way I am. I think parliamentarians should make themselves available. Therefore this morning I had the pleasure of meeting representatives of the generic drugs industry.

I told them “This is not the right time to raise this issue. I believe that there must be a debate on the cost of drugs and that we must ask ourselves if we did not go too far in the protection provided to patent drugs. What should we do about generic drugs, notably with respect to the rules of procedural equity?” In this regard, the supreme court has handed down some rulings.

Once again, the Bloc Quebecois agrees with the need to set up a strong research infrastructure and to make patent drugs one of Quebec's major industrial clusters. Our position on this remains unchanged.

However, in the next few years we will also have to think about access to drugs. When I met the representatives of the generic drug industry, I told them “You would be making a serious strategic mistake if you raised the issue of the regulatory framework authorizing a notice of compliance”. That is not the way to go.

With a notice of compliance, as we know, when an industry makes the slightest allegation of patent infringement, we can interrupt the process for 24 months, during which the generic drug industry cannot sell the drug.

However, the issue here is a WTO ruling. In other words, even if there were not, in Canada, a debate between generic drugs and patent drugs, Bill S-17 would still be before us, because the WTO has handed down a ruling. This is binding arbitration, and in fact Canada has until August 2001 to raise these issues.

As parliamentarians, we have missed an opportunity to raise an important issue. When the national forum on health tabled its report in 1997, it was already recommending dealing with the issue of access to drugs. As we speak, six provinces have created working groups on the reorganization of the health care system.

Of course, wherever we are—the NDP whip knows this—all the provinces are debating the reorganization of health care. This is understandable. This is the first time in the history of mankind that we are no longer talking about the old but the very old.

Let us take the hon. member for Jonquière as an example. She does not smoke, she does not drink, she takes care of her health. If everything goes well in her life, if she does not have too much stress because of her colleagues, she has an excellent chance of living until the age of 100. This is the reality. Today, it is not uncommon in our communities for people to live to be quite old, and women live longer than men.

Why do women live longer than men? Because women are more in touch with their emotions. Women are more balanced when it comes to life and life's great values. Mr. Speaker, women will live longer than men, and I know you will personally be glad for this.

We have missed an opportunity that we will have to create in the next years, to deal with access to drugs. What services or range of services do we want to provide to our fellow citizens? How will we organize our health system? I sometimes have the opportunity to meet with medical association representatives and hospital directors, and I wonder if we are all aware of which budget item uses up most of the hospitals' resources. It is drugs. This is understandable. People live longer, but they also live longer with disabilities. People can be on medication for longer periods of time than ever before.

Because of this, a question arises: do we want to stay with the same process of covered drug lists that we have at present, which are such a drain on government budgets, particularly provincial governments? After all, they are the ones who have to reimburse drug costs.

Let me give members some statistics to think about. Out of 72 new drugs approved by the Quebec government last year, more than 50 were brand name drugs. By comparison, I think Ontario authorized some 40 new drugs. The number is approximate and just gives an idea of what is involved. Only ten were brand name drugs. Ontario, our next door neighbour, for the same available drugs, chose to approve fewer brand name drugs.

Of course, this raises questions. Again, the research infrastructure is important. Why would a pharmaceutical company do research at a cost of maybe $175 million if it is copied by a competitor? Conversely, if brand name drugs are so costly that whole segments of the population cannot afford them, there is also a problem.

We see the balance that is needed and the debate that is coming. However, Bill S-17 is not what should trigger the debate.

At the Standing Committee on Health, we are currently examining the whole issue of human artificial reproduction technologies. Once this debate is over in January 2002, however, I myself may table a motion on the whole issue of access to drugs. I think this issue is extremely important for us, as parliamentarians.

I would be tempted to stop here to let my colleagues debate the issue, but let me say once again that this bill points to the significant dilemma whereby the sovereignty of national states is eroded. It is the dilemma that arises when an organization, a multinational forum, has handed down a ruling that impacts on our capacity as parliamentarians to make decisions. In the end, this dilemma obviously impacts on the industry and then on consumers.

Bill S-17, as such, will not fundamentally change anything for the industry. I will give a few statistics the Minister of Industry has so kindly made available, knowing that hon. members are just dying to have such information. To give us some idea of the situation, as of January 2001, the number of patents issued under the old act was 138,000. Of that total, some 53,500 were protected for less than 20 years. Another 85,300 had 20 year protection under the latest provisions of the legislation we passed.

According to the people at Health Canada, the World Trade Organization ruling will not have any lasting effects on drug costs. The impact of the ruling over the next eight years—understanding that patents without the 20 year protection will end in 2009—will be minimal.

According to departmental officials, this will be the equivalent in quantitative terms of less than 1% of one year's drug sales. There is not, therefore, any risk and we must keep telling the public they will continue to have access to affordable drugs according to the letter of Bill S-17.

I would like my colleagues to know that one of the things that makes our drug licensing system original is the fact that we have created a regulatory body called the Patented Medicine Prices Review Board. Since the Progressive Conservatives brought in the Patent Act, this regulatory body has been in place to monitor the pricing structure of drugs.

A series of criteria is taken into account, and there is a series of drugs, drug A, B or C. There is a controversy. Some, like the Patented Medicine Prices Review Board, in its eighth report released in 1995, contend that, of the new drugs introduced onto the market, only 2.7% really have any new therapeutic value.

That said, the average cost of drugs must still be kept in mind. Drugs are too expensive—we agree on this—and we must put the consumer at the heart of our concerns. Yet when we compare ourselves with the United States, and that is what the Patented Medicine Prices Review Board found, the cost of patented medicines in Canada is, on average, 40% lower than in the United States.

A formula of the Patented Medicine Prices Review Board has given us an advantage we may rightly be proud of. Despite the fact that a debate needs to be held on access to drugs, still with the consumer at the heart of our concerns, when we compare ourselves with a country like the United States—the comparison is relevant, because we are North Americans and there are a number of subsidiaries in Canada, whose head offices are of course in the United states—the cost of drugs is 40% lower here than it is in the U.S.

I would stop there, hoping that the debate is held and that we may always keep the best interest of consumers in mind and the need for Quebec, whose economic dynamism is a matter of record, to hold on to what it has done for a research infrastructure in connection with brand name drugs.

[The Deputy Speaker]

Is the House ready for the question?

[Some hon. members]

Question.