Québec Superior Court decision could broaden the federal government’s scope over patented drug pricing

February 12, 2021

The Québec Superior Court has ruled that patented drug price control falls within the scope of the federal government’s powers over patents.

The Lawyer’s Daily reports that this decision will have a fundamental impact on the Canadian pharmaceutical industry and will force Ottawa to reexamine its regulatory approach and guidelines over patented drug pricing—and could expand the federal government’s scope to regulate other intellectual property.

Speaking on the decision, Yael Bienenstock told The Lawyer’s Daily that it may lead to the federal government having a very broad power over the pricing of patented products.

“Arguably, if you say that the federal government’s power to legislate patents means that it can also regulate the price of those patented products, then that can very quickly become a very broad power,” she said.

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Yael also recognized that the court “really did not” discuss the breadth of the federal government’s patent power. While Justice Picard said that price control at a federal level will stop drugs from being sold at excessive prices (which have been directly linked with patents), Yael said she was “not answering the question of whether in pith and substance the regime falls within the patent power. The court says it’s related to the patent’s power, but they’re not quite the same thing”.

To learn more about this topic, tune into our drug pricing and reimbursement four-part series.

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