Lilly Files Reply Submissions in NAFTA Arbitration Against Canada

On September 11, 2015, Eli Lilly filed a reply memorial and reply expert reports in its North American Free Trade Agreement (NAFTA) Chapter 11 arbitration against the Canadian government. The main issue in this NAFTA dispute is whether Canada’s patent law related policy, particularly in relation to utility of inventions, is consistent with its NAFTA treaty obligations to protect foreign inventors’ intellectual property rights.

In this reply memorial Lilly responded to Canada’s counter memorial, which had stated, among other things, that the Canadian courts had rightly applied the long established promised utility doctrine of patent law. Lilly’s reply memorial refutes Canada’s counter memorial, arguing that it failed to address Lilly’s substantive claims regarding Canadian judiciary’s allegedly unique and unusual approach to patent utility. Lilly re-emphasized its position that judicial invalidation of Lilly’s Zyprexa (olanzapine) and Strattera (atomoxetine) patents is discriminatory and violates Canada’s NAFTA treaty obligations.

It remains to be seen how the arbitrators will strike a balance between Canada’s sovereignty over its patent law related policies and the investors’ rights under NAFTA.

For prior E-TIPS coverage on Eli Lilly’s NAFTA Chapter 11 challenge, click here, here, here and here.