Pharmacia LLC v Juno Pharmaceuticals Pty Ltd [2022] FCAFC 167

Federal Court of Australia

Pharmacia LLC v Juno Pharmaceuticals Pty Ltd [2022] FCAFC 167 Appeal from: Pharmacia LLC v Juno Pharmaceuticals Pty Ltd [2022] FCA 92; Pharmacia LLC v Juno Pharmaceuticals Pty Ltd (No 2) [2022] FCA 369

File number: NSD 294 of 2022

Judgment of: JAGOT, YATES AND DOWNES JJ

Date of judgment: 29 September 2022

Catchwords: PATENTS – standard patent claiming reconstitutable powder composition containing a cyclooxygenase-2 inhibitor for parenteral administration – claim construction – whether claims include or exclude residual water from the composition – meaning of "about" as used in claims – whether omnibus claim infringed – whether error in finding that only certain exemplar batches of product infringed – no error shown PATENTS – validity – lack of inventive step – where respondents put forward eight-step development pathway leading to claimed invention – development pathway was not obvious – whether prior art information could be reasonably expected to have been ascertained – no error shown PRACTICE AND PROCEDURE – respondents permitted to amend defence after commencement of trial – where no evidence adduced by respondent to explain withdrawal of admissions – where appellants did not raise serious objections to certain amendments and did not complain of prejudice in the manner contended on appeal – appellants did not apply for adjournment of the trial or for directions to enable further documents to be obtained to meet claimed prejudice – no error shown PRACTICE AND PROCEDURE – complaint that primary judge failed to make declarations of infringement and costs orders as sought by appellants – no error shown