Arrow Pharmaceuticals Limited v Merck & Co., Inc. [2005] FCA 188

FEDERAL COURT OF AUSTRALIA

Arrow Pharmaceuticals Limited v Merck & Co., Inc. [2005] FCA 188 ARROW PHARMACEUTICALS LIMITED v MERCK & CO., INC. NSD 1211 OF 2002 GYLES J 9 MARCH 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1211 OF 2002

BETWEEN: ARROW PHARMACEUTICALS LIMITED

APPLICANT

AND: MERCK & CO., INC.

RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 9 MARCH 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1 Subject to order 2 the respondent pay the applicant's costs of the proceedings.

2 The applicant pay the respondent's costs:

(a) arising out of service of the affidavits of John Anthony Eden, Thomas John Martin, Michael Jeffrey Hooper and Martin Epstein and the provision of related patient records;

(b) of and incidental to the issues raised by paragraphs 8, 9, 10 and 11 of the Fourth Further Amended Particulars of Invalidity. 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 NSD 1211 OF 2002

BETWEEN: ARROW PHARMACEUTICALS LIMITED

APPLICANT

AND: MERCK & CO., INC.

RESPONDENT

JUDGE: GYLES J

DATE: 9 MARCH 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Orders were made in this matter on 8 October last. Those orders followed the delivery of reasons on 6 October 2004 (Arrow Pharmaceuticals Limited v Merck & Co., Inc. [2004] FCA 1282). The issue of costs was stood over for further argument. In the course of the reasons for judgment I said: 'As to costs, my present view is that Merck should pay Arrow's costs of the proceeding, excluding costs relating to particulars of invalidity on the ground of novelty which were not pursued at trial.' Broadly speaking, the applicant is content with that result. The respondent argues for apportionment of costs between particular issues.