Eli Lilly NAFTA Chapter 11 Claim - Part 3

One last post on the Eli Lilly NAFTA Chapter 11 complaint (unless someone else has something they want to add).  Eli Lilly's national treatment argument is as follows:

106.  The  measures in  issue  de facto  discriminate  against Lilly,  a  U.S. investor,  when compared to domestic investors, by requiring the Strattera patent (which was filed on the basis of an international application) to meet elevated and additional standards for utility and disclosure  that  are not required  by  the laws  of the United  States of America,  the European  Union, or  the  harmonized PCT rules.  The  measures in  issue  disadvantage foreign nationals and render their patents  especially vulnerable to  attack by insisting on proof of utility and disclosure of evidence that is not required by the foreign applicants' own national jurisdictions or international rules.

107.  The  measures in  issue  also de  facto  result in  less  favourable treatment  to  Lilly as compared  to  domestic generic  competitors,  who by  virtue  of the application  of the measures are able to reap the economic benefits associated with Lilly's investments, thus destroying Lilly's market share and associated profits.

Do either of these arguments demonstrate less favorable treatment?  The first compares Eli Lilly's treatment in Canada with that given to Eli Lilly under U.S. or international law.  The second compares Eli Lilly's treatment with that given to domestic generic competitors.  But is the comparison between Eli LIlly and similarly situated Canadian patent holders (i.e., non-generic companies) the real key?