Apotex Pty Ltd v ICOS Corporation (No 4) [2018] FCA 1316

FEDERAL COURT OF AUSTRALIA

Apotex Pty Ltd v ICOS Corporation (No 4) [2018] FCA 1316 File number: VID 280 of 2016

Judge: BESANKO J

Date of judgment: 24 August 2018

Catchwords: PATENTS – consideration of final declarations, certifications and orders in proceeding where applicant sought relief by way of declarations of invalidity and orders for revocation of claims in two patents (the '946 Patent and the '666 Patent) PRACTICE AND PROCEDURE – where injunctions sought – consideration of matters relating to the terms of the injunctions sought – consideration of whether it is appropriate for final orders to contain a penal notice where the orders include an injunction – where penal notice is in the standard form required by the Federal Court Rules 2011 (Cth) – where penal notice applies to a corporation – where proposed orders contain the usual form of injunctive order in a patent infringement dispute, that is, an order restraining the infringement of the claims in suit – consideration of whether a prohibition relates to the facts of the case which is the subject of the proceeding – consideration of whether a prohibition ought to be made because making or maintaining a commitment or guarantee in connection with an application to list a product on either the Schedule of Pharmaceutical Benefits or the Repatriation Schedule of Pharmaceutical Benefits (Schedules) is not an infringement of a patent

Legislation: Federal Court Rules 2011 (Cth) rr 41.06, 41.08

Cases cited: Apotex Pty Ltd v ICOS Corporation (No 3) [2018] FCA 1204 Coflexip SA v Stolt Comex Seaway MS Ltd [2001] RPC 9 Janssen Securities Ireland UC v Alphapharm Pty Ltd [2017] FCA 1399 Warner-Lambert Company LLC v Apotex Pty Ltd [2017] FCAFC 58; (2017) 249 FCR 17