Alphapharm Pty Ltd v H Lundbeck A/S [2014] FCA 1185

FEDERAL COURT OF AUSTRALIA

Alphapharm Pty Ltd v H Lundbeck A/S [2014] FCA 1185 Citation: Alphapharm Pty Ltd v H Lundbeck A/S [2014] FCA 1185

Appeal from: Alphapharm Pty Ltd v H Lundbeck A/S [2014] APO 41

Parties: ALPHAPHARM PTY LIMITED, APOTEX PTY LTD, ASPEN PHARMA PTY LTD and SANDOZ PTY LTD v H LUNDBECK A/S

File number: NSD 706 of 2014

Judge: RARES J

Date of judgment: 6 November 2014

Catchwords: PATENTS – whether pharmaceutical substance per se for purposes of s 70(2)(a) of the Patents Act 1990 (Cth) was isolated molecule as claimed in patent in suit or part of goods containing that molecule that had been previously included on Australian Register of Therapeutic Goods – whether earlier inclusion on Australian Register of Therapeutic Goods of pharmaceutical good before molecule isolated could form basis for extension of term of patent in suit under s 70 STATUTORY INTERPRETATION – PATENTS – where extension of term of patent in suit held invalid by Court in earlier proceedings and extension removed from Register of Patents – whether earlier invalid extension constituted a previous extension for purposes of s 70(4) of the Patents Act 1990 (Cth) – whether earlier extension no decision at all where affected by jurisdictional error – whether extension of term of patent can be granted after earlier invalid extension removed from Register PATENTS – whether Commissioner erred in granting extension of term of patent under s 76(1) of the Patents Act 1990 (Cth) immediately after deciding the opposition and before appeal from that decision determined – where Court has plenary and express powers under ss 192 and 160 of the Act to correct Register of Patents