Decisions of the Appellate Body of the World Trade Organization

Canada-Term of Patent Protection

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Joel P. Trachtman

WTO Appellate Body Report: Canada-Term of Patent Protection, AB-2000-7 WT/DS170/AB/R (00-3564), adopted by Dispute Settlement Body, 12 October 2000. Canada, Appellant, United States, Appellee. Division: Lacarte-Muró, Bacchus and Ganesan. Major Topics Addressed by Appellate Body: Patent protection under TRIPS Art. 33; retroactivity under TRIPS Art. 70.

1. Abstract

The main question in this case was whether existing Canadian patents were to be treated under Article 70.1 or 70.2 of TRIPS. Article 70.1 states that TRIPS does not give rise to obligations in respect of acts which occurred before the date of application of TRIPS, and Article 70.2 states that TRIPS gives rise to obligations in respect of all subject matter existing at such date. Thus, the interpretive question was whether the Canadian patents were "acts" or "existing subject matter." The Appellate Body confirmed that the patents themselves were not acts, but protected existing subject matter, and therefore were intended to benefit from TRIPS under Article 70.2. The Appellate Body stated that this was not retroactive application, but prospective application of TRIPS with respect to pre-existing patents.

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