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?
