Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Apotex Pty Ltd v Les Laboratoires Servier [2013] FCA 1426 Citation: Apotex Pty Ltd v Les Laboratoires Servier [2013] FCA 1426
Parties: APOTEX PTY LTD ACN 096 916 148 v LES LABORATOIRES SERVIER and SERVIER LABORATORIES (AUST) PTY LTD
File number: NSD 51 of 2012
Judge: RARES J
Date of judgment: 24 December 2013
Corrigendum: 6 March 2014
Catchwords: INTELLECTUAL PROPERTY – patents – patent claimed particular new pharmaceutical salt of substance – whether invention of new salt novel within meaning ss 7(1) and 18 of Patents Act 1990 (Cth) when two earlier patents in prior art made general claims for the substance "and its pharmaceutically acceptable salts" – whether earlier patents' claims disclosed the invention to skilled addressee or lacked sufficient content – common general knowledge INTELLECTUAL PROPERTY – patents – whether claimed invention obvious and involved inventive step within meaning of ss 7(2) and 10(1) of Patents Act 1990 (Cth) – whether problem/solution approach apposite – perspective of person skilled in the art as to whether selection of counter-ion to try in salt screen obvious INTELLECTUAL PROPERTY – patents – whether claim in patent for pharmaceutical salt "and its hydrates" fairly based within meaning of s 40(3) of Patents Act 1990 (Cth) – where complete specification did not indicate how hydrates were part of invention or how made – construction of patent – whether construction approached from position of skilled addressee INTELLECTUAL PROPERTY – patents – whether complete specification described best method known to the patentee of performing the invention within meaning of s 40(2)(a) of Patents Act 1990 (Cth) – where complete specification gave very general description of method leaving open many alternatives that left to chance whether a pharmaceutically acceptable salt would be produced – whether person seeking revocation must prove that the particular method that patentee failed to disclose is in fact a better method than the generalised method described in the specification INTELLECTUAL PROPERTY – patents – statutory construction – whether expression "fraud, false suggestion or misrepresentation" in s 138(3)(d) of Patents Act 1990 (Cth) identifies three alternatives – meaning of "fraud", "false suggestion" and "misrepresentation" in s 138(3)(d) – basis upon which patent construed as understood by Commissioner of Patents for purpose of revocation proceedings under s 138(3)(d) – onus of proof of falsity in the sense in which skilled addressee would understand the patent read as a whole STATUTORY CONSTRUCTION – whether Court's power to revoke a patent under s 138(3) of Patents Act 1990 (Cth) discretionary
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