Abbott GMBH & Co. KG v Apotex Pty Ltd [2009] FCA 1366

FEDERAL COURT OF AUSTRALIA

Abbott GMBH & Co. KG v Apotex Pty Ltd [2009] FCA 1366 Therapeutic Goods Act 1989 (Cth) Patents Act 1990 (Cth),

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622-623 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, 81-82[65] Interpharma Pty Ltd v Commissioner of Patents (2008) 79 IPR 261, 267 Smith & Nephew Pty Ltd v Wake Forest University Health Sciences [2009] FCAFC 142, [51]–[52]

ABBOTT GMBH & CO. KG and ABBOTT AUSTRALASIA PTY LTD (ACN 000 180 389) v APOTEX PTY LTD (ACN 096 916 148)

VID 796 of 2009

JESSUP J

20 NOVEMBER 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 796 of 2009

GENERAL DIVISION

BETWEEN: ABBOTT GMBH & CO. KG

First Applicant

ABBOTT AUSTRALASIA PTY LTD (ACN 000 180 389)

Second Applicant

AND: APOTEX PTY LTD (ACN 096 916 148)

Respondent

JUDGE: JESSUP J

DATE OF ORDER: 20 NOVEMBER 2009

WHERE MADE: MELBOURNE

UPON the applicants by their counsel undertaking:

(a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order below or any continuation (with or without variation) thereof; and

(b) to pay the compensation referred to in (a) to the person there referred to;

And upon the applicants by their counsel undertaking to refrain from selling a licensed or own generic of Reductil into the Australian market before 1 January 2011 without first providing the respondent with one month's prior notice of the launch date.

THE COURT ORDERS THAT:

1. Pending the hearing and determination of this proceeding or further order, but only for so long as the applicants do not sell, offer for sale or promote the sale of a pharmaceutical product, other than REDUCTIL, in which the active ingredient is or includes sibutramine hydrochloride monohydrate, the respondent be restrained (whether by its directors, its officers, its servants, its agents or howsoever otherwise) from making, selling or otherwise disposing of, and from offering to sell or otherwise to dispose of, any pharmaceutical product in which the active ingredient is or includes sibutramine hydrochloride monohydrate. 2. The parties have liberty to apply. 3. The costs of the applicants' interlocutory application be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.