The Broken Promise Doctrine: AstraZeneca Canada Inc v Apotex Inc and the Future of Pharmaceutical Patents

  • Darren N. Wagner


In AstraZeneca Canada Inc v Apotex Inc, the Supreme Court of Canada abolished the so-called promise doctrine in patent law. Large pharmaceutical companies that sought greater patent protections through litigation routinely mischaracterized the promise doctrine. To demonstrate that mischaracterization, this case comment begins by examining historical and international perspectives that informed the Supreme Court’s decision. This paper then turns to a critical yet subjective element of the decision: the analysis of the meaning and purpose of “use” and “useful” in the Patent Act. The reasons for the decision are then considered against the advantages that more stringent utility requirements offer to both patent law and the pharmaceutical industry. This paper concludes with the recent legacy of the decision and recommendations for why and how the courts might seek a middle ground for utility promises in patents.