The Competition Bureau has released updated Intellectual Property Enforcement Guidelines. The guidelines are directed to the Bureau’s approach to investigating anti-competitive activities relating to intellectual property including settlements, particularly in PM(NOC) proceedings, price-fixing, patent pooling, product switching, patent assertion entities and standard essential patents.
The guidelines (link, announcement) have been updated since hte draft guidelines were released in 2015 based on feedback received from various stakeholders. I was involved in the submission by the Canadian Bar Association prepared jointly by the Competition and IP Sections (submission – members only).
The guidelines discuss the law and principles of IP and competition law followed by a series of hypothetical examples which outline the Bureau’s approach. From the guidelines:
The Bureau applies the general provisions of the Act when IP rights form the basis of agreements or arrangements between independent entities, whether in the form of a transfer, licensing arrangement or agreement to use or enforce IP rights, and when the alleged competitive harm stems from such an agreement or arrangement and not just from the mere exercise of the IP right and nothing else.
According to the summary, the changes since the draft guidelines (see previous posts from 2014 and 2015) particularly address product switching and settlements in PM(NOC) proceedings. Several new examples have been provided including on “hard” and “soft” switching.
For PM(NOC) proceedings, the Bureau has included examples of entry-split settlements, settlements with payments, settlements beyond the scope or expiry of the patent and “sham” agreements.