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Open Access Debate

Canada's Patented Medicine Notice of Compliance regulations: balancing the scales or tipping them?

Joel Lexchin

Author Affiliations

School of Health Policy and Management, York University, 4700 Keele St., Toronto Ontario M3J 1P3, Canada

Department of Emergency Medicine, University Health Network, 190 Elizabeth St. Toronto Ontario M5G 2C4, Canada

Department of Family and Community Medicine, University of Toronto, 163 McCaul St. Toronto Ontario M5G 1L5, Canada

BMC Health Services Research 2011, 11:64  doi:10.1186/1472-6963-11-64

Published: 24 March 2011

Abstract

Background

In order to comply with the provisions of the North American Free Trade Agreement, in 1993 the Canadian federal government introduced the Patented Medicine Notice of Compliance Linkage Regulations. These regulations were meant to achieve a balance between the timely entry of generic medicines and the rights of patent holders. The regulations tied the regulatory approval of generic medicines to the patent status of the original brand-name product.

Discussion

Since their introduction the regulations have been a source of contention between the generic and the brand-name industry. While the regulations have generated a considerable amount of work for the Federal Court of Canada both sides dispute the interpretation of the "win rate" in the court cases. Similarly, there is no agreement on whether multiple patents on single drugs represent a legitimate activity by the brand-name industry or an "evergreening" tactic. The generic industry's position is that the regulations are being abused leading to the delay in the introduction of lower cost generic products by as much as 8 years. The brand-name companies counter that the regulations are necessary because injunctions against the introduction of generic products are frequently unavailable to them. The regulations were amended in 2006 and again in 2008 but both sides continue to claim that the regulations favour the other party. The battle around the regulations also has an international dimension with interventions by PhRMA, the trade association representing the United States based multinational companies, arguing that the regulations are not stringent enough and that Canada needs to be placed on the U.S. Priority Watch List of countries. Finally, there are multiple costs to Canadian society as a result of the NOC regulations.

Summary

Despite the rhetoric there has been almost no empiric academic research done into the effect of the regulations. In order to develop rational policy in this area a number of key research questions have been formulated.