Study Shows That Wartime Program To Abolish Copyright On German Science Books Brought Significant Benefits To US

from the perhaps-we-should-do-it-more-often dept

As Techdirt readers know, there is a ratchet effect that means copyright always gets longer and stronger. As well as being inherently unfair -- why must the public always lose out when copyright law is changed? -- there's another unfortunate consequence. If the term or breadth of copyright were reduced from time to time, we would be able to test the effects of doing so on things like creativity. For example, if it turned out that shortening copyright increased the number of works being produced, then there would be a strong argument for reducing it further in the hope that the effect would be strengthened. The fact that we have been unable test this hypothesis is rather convenient for copyright maximalists. It means they can continue to call for the term of copyright to be increased without having to address the argument that this will cause less creativity, or reduce access to older works.

Even though it is not possible to test the effects of reduced copyright directly, two US academics, Barbara Biasi and Petra Moser, have spotted a clever way of investigating the idea indirectly, in the field of science publishing. As they write in a post on CEPR's policy portal, in 1942 the US Book Republication Program (BRP) allowed US publishers to reprint exact copies of German-owned science books, effectively abolishing copyright for that class of works. They have looked at what impact this dramatic change had on the use of those reprinted works by scientists. Comparing citation rates before and after the BRP was introduced is not enough on its own: citation rates fluctuate, so it is necessary to compare the BRP citation rate with something else. The researchers' solution is to look at the citation rate of Swiss books from the same time:

This approach addresses the issue that English-language citations may have increased mechanically after 1942, if English-language scientists published more after the war. Like German scientists, Swiss scientists were leaders in chemistry and mathematics and wrote primarily in German, but due to Switzerland's neutrality, Swiss-owned copyrights were not accessible to the BRP. [Office of Library Services] estimates of a matched sample of BRP and Swiss books (in similar fields and with similar levels of pre-BRP non-English citations) confirm the significant increase in citations in response to the BRP.

Specifically, there was a 67% increase in citations of BRP books compared to similar Swiss books. The research suggests this was driven largely by the 25% drop in average prices seen after the BRP scheme was introduced. The reduction in price seems to have allowed a wider range of US libraries to purchase the more affordable BRP texts, whereas Swiss books remained concentrated in the holdings of two wealthy research libraries (Yale and Chicago). Better access was correlated with more citations: the data shows that the latter increased most near the locations of BRP libraries. The researchers conclude:

In the context of contemporary debates, our findings imply that policies which strengthen copyrights, such as extensions in copyright length, can create enormous welfare costs by discouraging follow-on science, especially among less affluent institutions and scientists.

Critics might point out that this is just one study of one rather specific area. But that's an argument for reducing copyright terms, perhaps on a trial basis, to see whether the results of this research are confirmed. However, the copyright ratchet will never allow that, not least because the companies involved probably know it would confirm that constantly strengthening copyright is bad for everyone except themselves.

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Filed Under: benefits, copyright, germany, public domain, science, us

Hacker Lauri Love Wins Extradition Appeal; Won't Be Shipped Off To The US

from the phew dept

We've been writing about the saga of Lauri Love for almost four years now. If you don't recall, he's the British student who was accused of hacking into various US government systems, and who has been fighting a battle against being extradited to the US for all these years. For those of you old timers, the situation was quite similar to the story of Gary McKinnon, another UK citizen accused of hacking into US government computers, and who fought extradition for years. In McKinnon's case, he lost his court appeals, but the extradition was eventually blocked by the UK's Home Secretary... Theresa May.

In the Lauri Love case, the situation went somewhat differently. A court said Love could be extradited and current Home Secretary Amber Rudd was happy to go along with it. But, somewhat surprisingly, an appeals court has overruled the lower court and said Love should not be extradited:

Lawyers for the 32-year-old, who lives in Suffolk, had argued that he should be tried for his alleged crimes in the UK and that he would be at risk of killing himself if sent to the US.

The court accepted both of the main arguments advanced by Love’s lawyers that there was no reason he could not be tried in England and that he might suffer serious damage to his health if he were extradited.

Love may now face a trial in the UK -- but that is considered a much better option than being shipped overseas. After the ruling, Love noted that this could impact future cases of individuals in similar circumstances, and the link above quotes some lawyers suggesting that it's going to be much more difficult for the US to extradite people for computer crimes going forward. Given the ridiculousness of the CFAA and the way that the US treats computer crimes, this is clearly a good thing.

Filed Under: cfaa, computer crimes, extradition, hacking, lauri love, uk, us

TPP Is Back, Minus Copyright Provisions And Pharma Patent Extensions, In A Clear Snub To Trump And The US

from the canada,-leader-of-the-free-world? dept

As Techdirt noted back in November, the Trans Pacific Partnership (TPP) agreement was not killed by Donald Trump's decision to pull the US out of the deal. Instead, something rather interesting happened: one of the TPP's worst chapters, dealing with copyright, was "suspended" at the insistence of the Canadian government, which suddenly took on a leading role. At the time, it wasn't clear whether this was merely a temporary ploy, or was permanent. With news that the clumsily-named "Comprehensive and Progressive Agreement for Trans-Pacific Partnership" (CPTPP) has been "concluded", it now seems that the exclusion of both copyright and pharma patent extensions is confirmed. As Michael Geist writes:

the IP chapter largely reflected U.S. demands and with its exit from the TPP, an overhaul that more closely aligns the agreement to international standards was needed. Canada succeeded on that front with an agreement to suspend most of the controversial IP provisions including those involving copyright term, patent extension, biologics protection, and digital lock rules.

That's the good news. But there's still plenty of bad stuff in the CPTPP, a sample of which is listed here by The Atlantic:

A controversial arrangement whereby companies can sue countries over their domestic laws, known as the investor-state dispute settlement [ISDS -- corporate sovereignty] system, remains in a reduced fashion. Labor and environmental protections are largely unchanged [and unsatisfactory]. The EFF's [Jeremy] Malcolm pointed to e-commerce provisions that provide only weak privacy protections, among other issues, as still being problematic. But overall, the new deal is so similar to the original that Canadian labor unions are furious that their government is still advancing it, just as labor groups in the U.S. objected under Obama.

That anger means that even in the absence of the copyright and pharma patent extensions, there is still likely to be some resistance to the new deal, and not just in Canada. For example, economists estimate that the CPTPP will boost Australia's economy by only 0.04% per year -- a negligible amount that will be swamped by fluctuations in other factors. Some Australian businesses warn that the continuing existence of bilateral trade deals with eight of the CPTPP countries will lead to a complex "noodle bowl" of rules and regulations that could make it harder, not easier, to conduct business with them. In New Zealand, a long-standing critic of TPP, Professor Jane Kelsey, is particularly worried about a chapter on electronic commerce. And in Malaysia, a consumer group has urged the government there not to sign the deal, which it said would be "even worse" than TPP for the country.

Although we still don't have the final details of the deal, and the lingering presence of corporate sovereignty is regrettable, the CPTPP signals a hopeful shift away from the usual intellectual monopoly maximalism. The omission of copyright and patents from the new deal is a significant defeat for the US, which has been the main driving force behind their routine inclusion. And the fact that the CPTPP is going ahead at all without the US is a clear snub to Trump and his rejection of such multilateral trade negotiations.

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Filed Under: canada, corporate sovereignty, cptpp, donald trump, isds, tpp, trade deals, trade negotiations, us

Equustek No-Shows Legal Challenge Of Canadian Court Order Demanding Google Delist Sites Worldwide

from the and-the-links-will-be-going-right-back-up dept

Earlier this year, Canada's top court upheld a ridiculous, truly troubling ruling involving a company called Equustek Solutions. Equustek managed to get three consecutive courts to agree they had jurisdiction to force Google to block supposedly-infringing websites worldwide.

It was a rare show of audacity from the usually ultra-polite country. According to the court's reasoning, the only way to prevent continued "irreparable harm" to the plaintiff was to order Google to prevent anyone, anywhere in the world from accessing the site. That the court had no jurisdiction beyond the Canadian borders was treated as irrelevant.

Google responded to this insane ruling by filing a lawsuit in its own state, asking a judge to find the Canadian court's overreach unenforceable in the United States. It cited both Section 230 of the CDA and the First Amendment in support of its arguments.

This could have provided for some very interesting courtroom arguments. But, alas, it appears Equustek has no interest in presenting its case anywhere it doesn't have the homefield advantage. Joe Mullin of Ars Technica has more details:

It looks like Google is going to win that case, but not as a result of any high-minded legal arguments. Its opponent simply failed to show up. In a motion (PDF) filed Tuesday, Google said that Equustek CEO Robert Angus faxed Google's lawyers a letter "stating that Defendants would not be defending this action."

Equustek hasn't hired a US lawyer or shown up to any court proceeding, so Google will move for a default judgment. The company will then ask for a permanent injunction, preventing the Canadian order from being enforced in the US.

Given the authorities cited by Google in its lawsuit (Sec. 230, First Amendment), it's likely to obtain this permanent injunction. It likely would have obtained it anyway, even if Equustek hadn't chosen to opt out of the litigation. Equustek knows this, which is why it's not willing to spend any of its money fighting a losing battle.

Hopefully, the court will have a few things to say about the Canadian court's overreach when it hands this (admittedly easy) win to Google. It's all well and good to use home courts to grant you injunctions based on local law. It's absolutely appalling when a court decides it can demand compliance far outside of its jurisdiction.

[Addendum: shortly after this post had gone to bed (but fortunately before I had) the court's ruling arrived. As expected, the court [PDF] finds in favor of Google, pointing to its Section 230 immunity.

First, there is no question that Google is a “provider” of an “interactive computer service.” See 47 U.S.C. § 230(f)(2) (“The term ‘interactive computer service’ means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.”); O’Kroley v. Fastcase, Inc., 831 F.3d 352, 355 (6th Cir. 2016) (“Google is an interactive computer service, an entity that provides ‘access by multiple users to a computer server.’ ”); Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006) (“[T]here is no doubt that Google qualifies as an “interactive computer service.”); Gonzalez v. Google, Inc., No. 16-cv-03282-DM, 2017 WL 4773366, at *9 (N.D. Cal. Oct. 23, 2017) (finding that Google is a provider of an interactive computer service).

Second, Datalink—not Google—“provides” the information at issue. Google crawls third-party websites and adds them to its index. When a user queries Google’s search engine, Google responds with links to relevant websites and short snippets of their contents. Id. Google’s search engine helps users discover and access content on third-party websites, but it does not “provide” that content within the meaning of Section 230...

Third, the Canadian order would hold Google liable as the “publisher or speaker” of the information on Datalink’s websites. The Supreme Court of Canada ordered Google to “de-index the Datalink websites” from its global search results because, in the Court’s view, Google is “the determinative player in allowing the harm to occur” to Equustek... The Canadian order treats Google as a publisher because the order would impose liability for failing to remove third-party content from its search results.

Google meets the requirements for Section 230 immunity. As such, the Court finds that Google is likely to prevail on the merits of its Section 230 argument.

Likewise, the court finds Google would be harmed by the Canadian court's decision.

Google is harmed because the Canadian order restricts activity that Section 230 protects. In addition, the balance of equities favors Google because the injunction would deprive it of the benefits of U.S. federal law.

[...]

An injunction would also serve the public interest. Congress recognized that free speech on the internet would be severely restricted if websites were to face tort liability for hosting usergenerated content. It responded by enacting Section 230, which grants broad immunity to online intermediaries.

The short opinion closes out with a few choice words for the overreaching Canadian court.

The Canadian order would eliminate Section 230 immunity for service providers that link to third-party websites. By forcing intermediaries to remove links to third-party material, the Canadian order undermines the policy goals of Section 230 and threatens free speech on the global internet.

The First Amendment question goes unexplored because Section 230 immunity already provides Google with all it needs to secure an injunction. But the coda on the decision makes it clear the First Amendment question wouldn't go the Canadian court's way.]

Filed Under: california, canada, cda 230, censorship, default judgment, first amendment, free speech, jurisdiction, us
Companies: equustek, google

Google Asks US Court To Block Terrible Canadian Supreme Court Ruling On Global Censorship

from the jurisdictional-mess dept

Going back to the earliest days of Techdirt, we wrote numerous times about what a jurisdictional mess the internet was for various laws and legal regimes. But, even so, decades later, it's still pretty shocking just how messy Google's dispute over global censorship with Canadian courts has become. Last month, we wrote about a positively terrible decision in the Canadian Supreme Court, which upheld an appeals court and a district court, ruling that a Canadian court could order a site to block access to content on a global basis. The lawsuit itself, brought by a company called Equustek against another company apparently selling knockoff/counterfeit equipment, pulled Google into its orbit when the court ordered Google, as a non-party in the case -- to block access worldwide to sites managed by the defendant in the lawsuit (who never showed up in court).

Google pointed out (quite reasonably) that Canadian courts don't have jurisdiction over the global internet any more than a Chinese or Iranian or Russian court would have jurisdiction across the globe. Over and over again, the Canadian courts more or less ignored the issue, saying, "doesn't matter, block it, this is bad stuff." We've discussed at great length the dangers of such a decision, so we won't rehash it now -- go read the previous posts, if you want to review that argument.

But here's where things get... odd. Most people assumed that this was the end of the road on this case. The Supreme Court in Canada is the top of the chain. There was no appeal. Google could (and probably will, if it hasn't already) petition the Canadian government to clarify the law on this. And it may push for clauses in trade agreements that block this sort of thing as well. Some even argued that Google might be able to make an "ISDS" claim out of this (though, that would be messy...). But, apparently, Google felt it had one more way to crack this nut: it has filed for declaratory relief in the US.

In short, Google is going to a US court and saying, "this ruling in Canada is offensive to our laws and Constitution, and you should block the Canadian courts from enforcing it." This is... fascinating from a legal geek standpoint. We do have the SPEECH Act, which bars foreign judgments being enforced in the US when it would go against the First Amendment, but this is slightly different. Google is arguing that a US court should, at the very least, stop Canada from being able to enforce the blockade in the US, because that violates both the First Amendment and Section 230 of the CDA.

This Court has personal jurisdiction over the Defendants because, inter alia, the Defendants have knowingly engaged in a course of conduct whereby they sought and obtained injunctive orders in the Equustek v. Jack litigation in Canada that are expressly aimed at requiring Google to undertake actions in the United States—specifically, to delist search results in the United States and throughout the world. In November 2012 Equustek served Google with a Notice of Application to the British Columbia court at Google’s offices in Mountain View, California. Equustek thereafter renewed the Application for a delisting injunction on May 13, 2013; sought and obtained a trial court injunction on June 13, 2014; and maintained its position adverse to Google through the Canadian appellate process. The Supreme Court of Canada confirmed in its June 28, 2017 opinion that the Canadian order was intended to require Google to take steps where its search engine is controlled—namely, California.

And here's where things get really interesting. The Canadian Supreme Court ruling argued that the "harm" presented by Google up north was merely "theoretical" rather than real. However, Google wants the US court to rule that such an injunction violates the First Amendment and Section 230 of the CDA... at which point the harm is no longer theoretical because it will have a court ruling showing that the blockade has actually censored speech.

Of course, this may lead to a long fight in the US, which may also lead to many years of appeals and whatnot -- and the end result may be... who the hell knows what? What happens when you have two court systems in two different countries completely at odds with one another, with one claiming sovereignty over actions taken in the other's territory (and everywhere else)? One would think that the US would win out in that situation, but... it's kind of uncharted waters. And that by itself reinforces the very point that Google was trying to make, and which three levels of Canadian courts brushed off as no big deal. Clearly, this is going to be a case worth following, as the question of court jurisdiction on the internet gets more and more... fascinating.

Filed Under: canada, first amendment, free speech, global block, jurisdiction, right to be forgotten, us
Companies: equustek, google

China To Require Drone Owners To Register, Just As Similar US Requirements Are Struck Down

from the not-what-you-might-expect dept

The South China Morning Post has a story about a new requirement for drone owners in China to register with the country's civilian aviation regulator starting next month. So is this yet another example of the Chinese authorities clamping down on a potentially subversive new technology by ensuring that drone use can be tracked? Well, that might be one reason, but it's probably also to do with this:

The move is the latest by Chinese authorities to tackle the drone safety threat after the illegal use of unmanned aerial vehicles (UAVs) made headlines at least a dozen times since the beginning of 2017.

The latest case was in April when more than 240 flights were disrupted by drones flying near Chongqing Jiangbei International Airport in southwest China, leaving 10,000 travellers delayed.

And if you still think this is another manifestation of China's authoritarianism, just using safety as a pretext, you might like to bear in mind that the US authorities have required drone owners to register their machines for over a year. However, those regulations have just been struck down by a federal court in Washington, D.C., and it's not clear what the FAA will now do. Perhaps more interesting than arguing about China's real motives here, is information in the South China Morning Post story about who is using this technology in China:

Once the preserve of the military, they are now used in a wide range of industries, from aerial surveillance of crops to search operations and delivery of medical supplies to remote or otherwise inaccessible regions. For Chinese consumers, drones have become the favoured gadget for taking aerial videos and photos.

There are also estimates of future growth:

The overall UAV market in China is expected to reach 75 billion yuan (US$10.9 billion) by 2025, of which consumer drones will contribute 30 billion yuan while agricultural and forestry drones, as well as security drones, are likely to account for 20 billion yuan and 15 billion yuan respectively, iiMedia Research said in a report last year.

It's worth noting that the company generally regarded as world's top drone maker, DJI, is also Chinese. Given the activity and importance of the sector, what's surprising is not that China has brought in registration requirements for drone owners, but that it has taken so long.

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Filed Under: china, drones, privacy, regulations, us

US & EU Not Banning Laptops On Planes... Yet

from the stay-tuned dept

Last week there were reports claiming that the Department of Homeland Security (DHS) was just about ready to ban any laptops from being in the passenger cabin on any flights between the EU and the US. As we pointed out this made no sense, even if there were credible reports of terrorists turning laptops into bombs (as the rumor goes). The plan was supposedly set to go into effect last Thursday, but on that day DHS said it hadn't made a final decision yet. Of course, apparently some over eager airline employees had official signs printed up claiming the ban was already in place (leading to later apologies).

Apparently, the decision not to implement the ban came because EU officials were not thrilled with the idea and wanted to discuss -- leading to a series of meetings. Of course, that also allowed time for the airline industry to snap to attention and announce that such a ban might cost travelers around $1 billion. Admittedly, there may be some dubious math involved... but it's fairly obvious that such a plan would lead to all sorts of problems for travelers -- from general lost productivity, to delays and confusion around checking the laptops, to broken, lost or stolen computers and more.

At least for now, we can breathe a sigh of relief that the EU/US meetings have ended without a plan to ban laptops on planes... though such a plan could always pop out again in the near future (and, it will almost certainly happen if there is an airplane bombing). And, of course, there's still the ominous "other measures" still being considered:

US and EU officials have decided against a ban on laptops and tablets in cabin baggage on flights from Europe.

But after a four-hour meeting in Brussels to discuss the threats to aviation security, officials said other measures were still being considered.

Air travel security theater continues to be the worst security theater.

Filed Under: bans, dhs, eu, flights, laptops, security theater, us

Homeland Security Starts Banning Laptops & Tablets On Planes From The Middle East

from the that-is-going-to-piss-off-a-lot-of-people dept

It's been a very long time since I last flew somewhere without my laptop. I actually am more productive than usual on planes, and I tend to use flying time to just focus in and get a ton of stuff done. I can't even begin to explain how ridiculously frustrating it would be to find out that I wouldn't be allowed to bring a laptop onto a plane, and yet it appears that our new Homeland Security overlords have put in place new restrictions on flights to the US from certain countries in the middle east barring tablets and laptops from the cabin (apparently no American carriers are impacted -- just foreign ones). Passengers are being told to check such things (which is odd, since normally you're not supposed to check lithium ion batteries...). Flights from 13 countries are being hit with this, and Homeland Security won't give any further explanation beyond the usual "national security." And, just this morning, the UK announced that it would be doing the same thing.

Homeland Security has been hinting that this is due to some sort of specific threat -- so it sounds like there's intelligence around a planned attack using such a device. Perhaps then the extra precaution is sensible. But, once again, this feels like a form of overkill security theater: inconveniencing basically everyone (to extreme levels) based on the slight possibility of a very small number of bad actors. There has to be a better way. Every time one of these new restrictions is put in place, it not only completely inconveniences people, but it shows people that if they somehow convince the scaredy cats at DHS of some new type of threat, they can inconvenience people even more. It's almost as if each additional inconvenience is impacting things way more than an actual exploding laptop or whatever might.

Of course, it should be no surprise that former TSA boss Kip Hawley, is now running around arguing that this is no big deal and Wired is happy to tell everyone to calm down and just "buy a book." But that's kind of crazy -- especially for people who have important or sensitive information on their laptops and don't want to hand them off to baggage carriers with a history of snooping through bags and stealing expensive electronics.

Also, since this is limited to just a few Middle Eastern airports, it's not hard to think that if there are terrorists planning something, they'll just head to different airports instead. Yes, I'm sure that someone saw something that they thought was a threat, and it's reasonable to put in place plans that try to minimize some of that risk. But it has to take into account the cost side too, and there has to be a better way to deal with it than such a blanket ban impacting so many people.

Filed Under: dhs, flying, laptops, middle east, national security, security theater, tablets, terrorism, threats, tsa, uk, us

Eli Lilly Loses Quixotic Quest To Get Canada To Pay $500 Million For Rejecting Its Bad Patents

from the corporate-sovereignty-saved dept

Over the last few years, we've written a ton about "corporate sovereignty" provisions in trade agreements. Technically, these tend to be called "Investor State Dispute Settlement" or ISDS provisions, but I really believe that a decent part of the reason they're called something so boring is to stop people from paying attention to just how nefarious these provisions truly are. One of the reasons we first started paying attention to these provisions -- as they were showing up in agreements under negotiation, such as the TPP and TTIP -- was following a story involving the pharmaceutical giant Eli Lilly demanding $100 million from Canada for rejecting two of its patents.

The issue was that Canada had rejected these two patents because the company couldn't prove that the patented drugs were actually useful. Eli Lilly claimed that Canada had no right to reject patents on that basis, arguing that it was a "dramatic" shift in how patents were reviewed, and thus it was "expropriating its property" and undermining the company's "expected future profits." Think about that for a second. By the time this case went to an actual tribunal, the amount that the company was demanding had ballooned from $100 million to $500 million. This battle has waged on for many years -- and for Eli Lilly, this was a huge deal. Management at the company basically bet the company on continuing to get new patents, and any hiccup -- even a rejection of patents for not being useful -- could be a disaster for the company. The company even pushed to get Canada slammed during diplomatic proceedings in the infamous Special 301 Report for the USTR for daring to reject its patents -- and the USTR complied.

Well, it looks like all of that may have been for nothing. That's because Eli Lilly has lost entirely, and not only won't it be getting the $500 million it wanted, but it also has to pay Canada's $5 million in legal fees. You can read the final award here or down below. Of course, some may argue that this shows that the ISDS corporate sovereignty provisions work out fine in the end, with tribunals getting things right (even if that's not actually true in many cases), but just the fact that the Canadian government had to go through this massive and expensive process for many years just for rejecting two bad patents should show why ISDS provisions are such a problem.

In the ruling, the tribunal even notes the Special 301 report that Eli Lilly worked so hard to have call out Canada's patenting practices, but more or less dismisses it, by noting that others, such as Mexico didn't complain similarly:

The Tribunal has paid particular attention to the 2014 and 2015 editions of the Special 301 Report of the USTR. In these documents, USTR notes that the United States “has serious concerns about the lack of clarity and the impact of the heightened utility requirements for patents that Canadian courts have applied recently”. This comment cannot be dismissed outright as a lobbying effort by Claimant, as suggested by Respondent. However, the Special 301 Report stands alone in the record as a complaint regarding Canada’s utility doctrine from any other State, including Mexico, in the decade since the promise utility doctrine was allegedly adopted. For the Tribunal, that silence speaks louder than the single, brief criticism contained in the USTR’s Special 301 Report.

In other words, sure, maybe it wasn't just because Eli Lilly heavily lobbied Congress and the USTR to attack Canada on this point, but the fact that no other country seems concerned with Canada's standards for denying patents, it certainly looks like this wasn't such a big deal.

Also in the ruling, there's a focus on "expectations." Remember, a big part of Eli Lilly's claims was how this impacted its "expected" profits. But here, the tribunal basically notes that just because Eli Lilly expected Canada to ignore its own law, it doesn't mean that it actually enforcing its own laws is some nefarious plot:

The record shows that at the time Claimant made its investments, it was aware that Canadian patent law required patented inventions to be useful. Eli Lilly executives testified that they understood the Canadian utility requirement to be a low threshold. In fact, it appears that the utility of Strattera and Zyprexa in Canada was taken for granted within the company. Claimant expected its patents would not be invalidated for lack of utility.

However, this perception cannot amount to a legitimate expectation. For the reasons stated above, the Tribunal has found that each of the three elements of the alleged promise utility doctrine had a foundation in Canadian law when Claimant’s patents were filed. At that time, although Claimant may not have been able to predict the precise trajectory of the law on utility, it should have, and could have, anticipated that the law would change over time as a function of judicial decision-making.

The idea behind ISDS was to encourage investment in developing nations, where there was a fear that a sketchy government might seize a factory or something. But that's not a problem between Canada and the US, and Eli Lilly should have been able to put on its big boy pants and recognize that maybe, just maybe, Canada can reject some of its patents, and the company doesn't need to throw an international hizzy fit. Next time, rather than betting the company on patents, perhaps the company will start thinking about business models that don't require a complete lottery ticket.

Filed Under: canada, corporate sovereignty, drugs, isds, nafta, patents, tpp, us
Companies: eli lilly