World Trade Organization

• Author: International Law Group

On May 5, 2000, a Dispute Settlement Panel of the World Trade Organization issued its report in the U.S.-Canada dispute over Canada's term of patent protection. The Panel essentially agreed with the U.S. that Canada's 17-year patent protection fails to comply with the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). The U.S. had requested that a Dispute Settlement Panel review the matter in July 1999. The U.S. argued in its complaint that the TRIPS Agreement requires WTO Members to grant a minimum term of protection to all patents existing as of the date of application of the Agreement, and that Canada must apply the Agreement as of January 1, 1996.

Article 70.2 of the TRIPS Agreement provides that "this Agreement gives rise to obligations in respect of all subject matter existing at the date of application of this Agreement for the Member in question, and which is protected in that Member on the said date ..."

Canada's Patent Act provides that patent applications filed before October 1, 1989, would receive patent protection for only 17 years from the date the patent is issued. Article 33 of the TRIPS Agreement requires WTO Members to provide a patent protection term of at least 20 years from filing for all patents existing on January 1, 1996.

Canada...