copyright 1995 Dr. Patricia A. Rae
Sim, Hughes, Ashton & McKay / Sim & McBurney
The Canadian Patented Medicines Prices Review Board (PMPRB), in Bulletin No. 17 of October 1995, has announced that it has decided to change its current practice of not asserting jurisdiction over drug prices after the date of dedication of a patent to the public.
The Board will now assert jurisdiction over the price of a drug which is the subject matter of a patent which has been dedicated to the public until the earlier of
(i) the expiry of the term of the patent, or
(ii) the cancellation or surrender of the patent pursuant to express provisions of the Canadian Patent Act.
This change of practice will be applied effective as of January 30, 1995. Patentees will not be required to make filings to the PMPRB with respect to patents dedicated prior to that date.
The Board bases its change of practice on a legal opinion that the rights and benefits conferred by the Patent Act are granted for the duration or term of the patent unless terminated before the normal expiry date by one of the ways provided for in the Patent Act. The Canadian Patent Act does not provide for the dedication of a patent for public use as a means of terminating the patent.
The Board notes, in its announcement, that it is possible for a patentee to end PMPRB jurisdiction over a patent by allowing it to lapse for failure to pay maintenance fees. This recourse is, however, not available for patents issued before October 1, 1989.