Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Merck & Co Inc v Arrow Pharmaceuticals Ltd [2003] FCA 1344
PATENTS – Appeal from decision of a delegate of the Commissioner of Patents - Application for extension of term of patent – Patent for metabolite of prodrug – Prodrug had previously been the subject of a patent, now expired – Whether the applicant is entitled to an extension of its patent over the metabolite on the basis that the prodrug is listed on the Australian Register of Therapeutic Goods ('ARTG') and production of the metabolite is the only known therapeutic use of that prodrug – Alternatively, whether the applicant is entitled to an extension of term on the basis that small quantities of the metabolite are contained in its manufactured product, being a product listed on the ARTG. Patents Act 1990 (Cth) s 70 MERCK & CO INC v ARROW PHARMACEUTICALS LIMITED N 406 of 2002 WILCOX J 25 NOVEMBER 2003 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 406 of 2002
BETWEEN: MERCK & CO INC
APPLICANT
AND: ARROW PHARMACEUTICALS LIMITED
RESPONDENT
JUDGE: WILCOX J
DATE OF ORDER: 25 NOVEMBER 2003
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the delegate of the Commissioner of Patents to refuse an application for extension of the term of Australian Patent 535944 be set aside and, in lieu thereof, it be ordered that: (a) the opposition to that extension be dismissed; and (b) the said application be allowed. 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 406 of 2002
BETWEEN: MERCK & CO INC
APPLICANT
AND: ARROW PHARMACEUTICALS LIMITED
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