Otsuka Pharmaceutical Co., Ltd v Generic Health Pty Ltd [2015] FCA 848

FEDERAL COURT OF AUSTRALIA

Otsuka Pharmaceutical Co., Ltd v Generic Health Pty Ltd [2015] FCA 848 Citation: Otsuka Pharmaceutical Co., Ltd v Generic Health Pty Ltd [2015] FCA 848

Appeal from: Otsuka Pharmaceutical Co., Ltd v Generic Health Pty Ltd (No 4) [2015] FCA 634

Parties: OTSUKA PHARMACEUTICAL CO., LTD and BRISTOL-MYERS SQUIBB COMPANY v GENERIC HEALTH PTY LTD (ACN 110 617 859) and COMMONWEALTH OF AUSTRALIA

File number: NSD 837 of 2015

Judge: NICHOLAS J

Date of judgment: 14 August 2015

Catchwords: PRACTICE AND PROCEDURE – where appellants seek stay of primary judge's order vacating interlocutory injunction granted to appellants in proceeding for patent infringement – where relevant claims of patent held invalid – principles governing application for stay pending appeal – consideration of strength of appeal and balance of convenience – relevant considerations where respondent is supplier of generic pharmaceutical product seeking to list its products on Pharmaceutical Benefits Scheme ("PBS") PRACTICE AND PROCEDURE – whether Commonwealth of Australia should have benefit of an undertaking as to damages that is specific to it – whether appellants should be required to provide security in relation to any claim by the Commonwealth on the appellants' undertaking as to damages notwithstanding that the Commonwealth is not a party and the interlocutory injunction in question is not directed to the Commonwealth Held: stay granted and orders made requiring appellants to provide security to the respondent and the Commonwealth in respect of any entitlement to compensation payable under the usual undertaking as to damages