Merck Sharp and Dohme Corporation v Wyeth LLC (No 3) [2020] FCA 1477

FEDERAL COURT OF AUSTRALIA

Merck Sharp & Dohme Corporation v Wyeth LLC (No 3) [2020] FCA 1477 File number: NSD 1381 of 2017

Judge: BURLEY J

Date of judgment: 14 October 2020

Catchwords: PATENTS – two standard patents relating to a 13-valent pneumococcal conjugate vaccine (composition patents) – one standard patent relating to a container means for stabilising an immunogenic composition (container patent) – infringement – validity PATENTS – infringement – construction of product claims – whether "comprising" inclusive or exhaustive – infringement found PATENTS – validity – novelty – implied disclosure – whether person skilled in the art can supply integers by assumption or from common general knowledge – no anticipation of claims PATENTS – validity – lack of inventive step – s 7(2) of the Patents Act 1990 (Cth) – findings of common general knowledge – availability of prior art information under s 7(3) of the Patents Act – invention in composition patents not shown to lack an inventive step – invention in container patent found to lack an inventive step in light of the common general knowledge alone and in light of prior art information within s 7(3) of the Patents Act PATENTS – validity – lack of support – legal test – United Kingdom and European Law – technical contribution to the art – lack of support established for one composition patent PATENTS – validity – lack of fair basis – legal test – claims fairly based PATENTS – validity – lack of utility – promise of the invention – whether promises met – ground not established PATENTS – validity – manner of manufacture – threshold test – face of the specification – ground not established PATENTS – validity – lack of clarity – ground not established