Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Merck & Co Inc v Genrx Pty Ltd [2006] FCA 1407 PATENTS – interlocutory injunction – application to restrain respondent from importing and supplying pharmaceutical products containing applicant's patented compound – claim that patent invalid for lack of novelty – considerations relevant to grant of injunction where respondent challenges validity of patent - whether serious question to be tried on validity of patent
General Tyre and Rubber Co v Firestone Tyre and Rubber Co [1972] RPC 457, referred to Hill v Evans (1862) 31 LJ Ch (NS) 457, referred to Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543, referred to Smithkline Beecham plc's (paroxetine methanesulfonate) patent [2006] RPC 10, referred to Meagher, Heydon and Leeming, Meagher, Gummow and Lehane's: Equity: Doctrines and Remedies, (4th ed, 2002),referred to MERCK & CO INC AND MERCK SHARP AND DOHME MANUFACTURING v GENRX PTY LTD NSD 1848 OF 2006
MOORE J
31 OCTOBER 2006
SYDNEY IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 1848 OF 2006
BETWEEN: MERCK & CO INC
First Applicant
MERCK SHARP AND DOHME MANUFACTURING
Second Applicant
AND: GENRX PTY LTD
Respondent
JUDGE: MOORE J
DATE OF ORDER: 31 OCTOBER 2006
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
Upon the applicants giving the usual undertaking as to damages:
1. Until judgment or further order, the respondent, whether by itself, its servants, agents or otherwise howsoever, be restrained from importing into Australia the products identified as APO-ALENDRONATE (ARTG No 123863), GENRX ALENDRONATE (ARTG No 123864), CHEMMART ALENDRONATE (ARTG No 123865), TERRY WHITE CHEMISTS ALENDRONATE (ARTG No 123866) and ALENDRONATE-DP (ARTG No 123917). 2. The respondent pay the applicants' costs of the application for interlocutory injunctive relief. 3. The matter be stood over for further directions at 9.30 am on 29 November 2006. 4. The parties have liberty to apply on seven days notice or such shorter notice as the Court may direct. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA
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