I. PRELIMINARY STATEMENT

1. Through this arbitration Eli Lilly and Company (“Claimant” or “Lilly”) attempts to re-litigate two Federal Court proceedings that determined that atomoxetine and olanzapine patents held by Claimant were invalid under Canadian law.1 These decisions were the outcome of two lengthy trials during which Claimant had ample opportunity to present extensive factual evidence, witness and expert testimony and legal arguments in favour of its claim to valid patents. The Federal Court, having thoroughly examined the facts and applying precedents based upon long-standing principles of Canadian patent law, did not agree with Claimant’s position. Both judgments were ultimately upheld by the Federal Court of Appeal. The Supreme Court of Canada declined to review either ruling. There can be no doubt that Canada’s courts fulfilled their duty to rule on patent disputes in accordance with Canadian law, with full due process given to the disputing parties.

2. Claimant believes that NAFTA allows this Tribunal to act as court of de novo review from these two reasoned and procedurally just decisions of Canada’s Federal Court interpreting and applying Canadian law. Claimant believes that its own views of what Canadian patent law provides and its self-serving position on what NAFTA requires with respect to “utility” gives it the right to assail the reasoning of Canada’s federal judiciary as “profoundly arbitrary” and “illogical and absurd.”2

3. It is Claimant that is profoundly wrong. Nothing in these judgments offends any of Canada’s obligations under NAFTA. Claimant’s Memorial is rife with misrepresentations about Canadian patent law and misstatements of Canada’s NAFTA obligations under Chapters Eleven and Seventeen and of international law generally.