캐나다 특허법

Canadian Patent Law: Focusing on Compulsory Licensing of Medicine

Regardless of long standing Korea-Canada relations, Canadian law has been rarely introduced into Korea. Korean think that Canadian law may be similar to U.S. law because of their geographical closeness and common U.K. legal tradition. Accordingly many articles and papers in Korea still describe that Canadian patent law grants patent to the first person to invent. However, Canada amended its patent law and adopted a first-to-file system for patent protection. Also Canada has a distinct health care system from the U.S. The U.S. health care system is a free market system where citizens pay for their own privately financed and delivered health care programs and services. In contrast to the U.S. health care system, the Canadian health care system is publicly financed but privately delivered. Pharmaceutical regulations in Canada also reveal some differences from other countries. While most countries including Canada protect public health and safety through governmental regulations of food and drug products, pharmaceuticals are priced very differently in each country. When pharmaceutical companies determine the price in Korea and the U.S., pharmaceutical prices in Canada are subject to federal price controls. The price control of drugs results from the policy decision where public health is weighed against protection of a patent holder. Likewise, Canadian patent law provided compulsory licenses of pharmaceuticals. However, after joining TRIPS and NAFTA, Canada abandoned the compulsory license of pharmaceuticals. Despite that, Canada still maintains compulsory licenses for all patented products and processes. Moreover, Canada adopted Bill C-9 in 2003 where Canadian companies can produce and export patented drugs for least and less developed countries which have no or enough facilities to manufacture pharmaceuticals. TRIPS and General Council decision in 2003 allow a compulsory license to export drugs to countries that cannot manufacture the pharmaceuticals themselves. In spite of a humanitarian aspect of the decision, many developed and less developed countries including the U.S., Germany and China declared their negative positions against it. Patentees cannot be protected by denial of a compulsory license. Balancing protection of patentees with pursuit of humanity, many countries need to change their positions in a more active way. Canadian patent law can be a good example for such a change.