Abbott GMBH & Co. KG v Apotex Pty Ltd (No 2) [2010] FCA 940

FEDERAL COURT OF AUSTRALIA

Abbott GMBH & Co. KG v Apotex Pty Ltd (No 2) [2010] FCA 940 Citation: Abbott GMBH & Co. KG v Apotex Pty Ltd (No 2) [2010] FCA 940

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

File number: VID 796 of 2009

Judge: JESSUP J

Date of judgment: 2 September 2010

Catchwords: INTELLECTUAL PROPERTY – Patent – Validity – Whether invention anticipated by prior art – In absence of disclosure in terms, whether compound the subject of the patent would inevitably have been derived by following instructions in prior art – Construction of prior art document – Whether different meanings reasonably conveyed INTELLECTUAL PROPERTY – Patent – Validity – Whether invention involved an inventive step when measured against prior art base as at priority date – Whether skilled worker would have considered formation of patented compound to be the obvious solution to problem presented by prior art INTELLECTUAL PROPERTY – Patent – Validity – Whether invention a manner of manufacture – Whether compound the subject of the invention would come into existence in natural course INTELLECTUAL PROPERTY – Patent – Validity – Whether patent obtained by false suggestion – Whether amendments made to satisfy examiner, and represented as making a material difference to previous meaning of claims and specification, made no difference at all INTELLECTUAL PROPERTY – Patent – Infringement – Consistency of compound with patentee's claims determined by measuring water content – Relevance of deviations observed on measurement – Whether deviations took compound outside claims in patent