Aktiebolaget Hassle v Alphapharm [2000] FCA 1303

FEDERAL COURT OF AUSTRALIA

Aktiebolaget Hässle v Alphapharm Pty Limited [2000] FCA 1303 PATENTS - Combination patent for drug formulation – validity of patent – whether patent lacked an inventive step – whether combination obvious. Patents Act 1990, ss 7(2), 18(1)(b)

AKTIEBOLAGET HÄSSLE and ASTRA PHARMACEUTICALS PTY LIMITED

v ALPHAPHARM PTY LIMITED

N 670 of 1999

WILCOX, MERKEL & EMMETT JJ

9 OCTOBER 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 670 of 1999

BETWEEN: AKTIEBOLAGET HÄSSLE

First Appellant

ASTRA PHARMACEUTICALS PTY LIMITED

(ACN 009 682 311)

Second Appellant

AND: ALPHAPHARM PTY LIMITED

(ACN 002 359 739)

Respondent

JUDGES: WILCOX, MERKEL AND EMMETT JJ

DATE OF ORDER: 9 OCTOBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants, Aktiebolaget Hässle and Astra Pharmaceuticals Pty Limited, pay the costs of the respondent, Alphapharm Pty Limited. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 670 of 1999

BETWEEN: AKTIEBOLAGET HÄSSLE

First Appellant

ASTRA PHARMACEUTICALS PTY LIMITED

Second Appellant

AND: ALPHAPHARM PTY LIMITED

Respondent

JUDGES: WILCOX, MERKEL AND EMMETT JJ

DATE: 9 OCTOBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT EMMETT J: 1 The Court: The first appellant, Aktiebolaget Hässle, a Swedish corporation, is registered as the patentee of Australian Patent Number 601974 ("the Formulation Patent"). The second appellant, Astra Pharmaceuticals Pty Limited, an Australian company, is related to the first appellant and isthe exclusive licensee in Australia of the Formulation Patent. in Australia. Both appellants are members of the Astra pharmaceuticals group whose head office is in Sweden. As nothing turns on the identity of particular companies in the group, itIt is convenient to refer to both appellants, and tothe group to which they belong, as "Astra". The respondent, Alphapharm Pty Limited ("Alphapharm"), is an Australian company that carries on business as a generic drug manufacturer.