Eli Lilly’s odyssey to use a fake rule and fake news to protect bad patents
Someone high up in Eli Lilly and Company must be a “South Park” fan. When the company failed to ensure that the patents it filed on two blockbuster drugs, Zyprexa and Strattera, complied with Canadian law, it decided to “Blame Canada” rather than take responsibility for its error.
The company sued the Canadian government under the North American Free Trade Agreement for $500 million based on a classic trope: invent a fictional character to take the blame for one’s own failings. It lost the case, but confused everyone so much that the Supreme Court of Canada recently had to kill off the character.
In Oscar Wilde’s play “The Importance of Being Earnest,” one of the main characters created a fictional friend, called Bunbury, to obfuscate his own departures from proper conduct.
Eli Lilly’s Bunbury was more obscure than its literary predecessor. In essence, the company miscombined and mischaracterized statements taken out of context to invent a non-existent legal rule it called the promise doctrine and then blamed its application by Canadian judges for the loss of two valuable patents. It then spread fake news that Canada possessed this
