On court challenges

Back when the Cons first decided to give away additional patent protection to brand-name drug companies at the expense of Canadian citizens, the NDP's rightful concerns went largely unheeded. But now that the generic drug industry is going to court to have the change overturned, the change appears likely to come under the public scrutiny it deserves:

Canada's generic drug industry is set to launch a major court challenge today of new rules that extend the "monopoly" over brand-name medicines, saying the regulations are illegal and will cost the health care system $100-million a year.

The Canadian Generic Pharmaceutical Association will ask the Federal Court to quash rules that give brand-name drug firms an additional three years of "data protection" -- from five years to eight -- before generics can sell cheaper copies of their products.

Provincial governments, insurance companies and individuals will be forced to buy more expensive brand-name medication in each of those extra years of protection, the lawsuit warns...

Federal legislation stipulates Canada must align its intellectual-property rules with the requirements of the North American Free Trade Agreement and other trade deals.

But those treaties require only five years of protection, says the court application to be filed today by the generic association. So the changes implemented last month give the brand-name manufacturers three more years of "monopoly" than allowed by law, and must be struck down, the legal action argues.

The new Canadian rules also give generic manufacturers in the United States an advantage over their Canadian competitors because the U.S. data-protection period is still only five years, argued Mr. Keon.

On first glance, it doesn't appear likely that the regulatory change would give rise to a particularly strong legal challenge. But the more important battle is likely that in the court of public opinion. And if the suit brings enough attention to the Cons' reckless willingness to give gifts to big pharma out of the public purse, then it may yet be possible to get the amendments reversed in the longer term.