tag:blogger.com,1999:blog-5574479.post8994990855893320882..comments2024-03-29T13:59:42.629+00:00Comments on The IPKat: Wrongly excluded, rightly compensated: is "but for" the best solution?Verónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-5574479.post-71871185605794580092012-11-07T09:19:18.089+00:002012-11-07T09:19:18.089+00:00Section 8 at least provides some redress for a gen...Section 8 at least provides some redress for a generic who is wrongly exluded from the market as a reault of an invalid patent. The method by which the damages are calculated is not perfect, but no system is ever going to be perfect, as it involves hindsight speculation as future events which did not happen. Absent a DeLorean, some plutonium and a flux capacitor, then the courts are just guessing. <br /><br />However, one deficiency of the Canadian section 8 system is that the parties that really lose out by unjustified delayed generic entry are not compensated at all. Who, you may ask? That would be the public purse (i.e. Governments / Health Insurers / patients). <br /><br />Certain litigation systems have taken steps to plug this gap, such as the 3rd party undertaking seen in preliminary injunction cases in the UK and Australia. However, this mechanism is noticably absent from litigation systems in the rest of the world.Anonymousnoreply@blogger.com