Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Neurim Pharmaceuticals (1991) Ltd v Generic Partners Pty Ltd (No 5) [2024] FCA 360 File number: NSD 656 of 2017
Judgment of: NICHOLAS J
Date of judgment: 12 April 2024
Catchwords: PATENTS – claims for methods of treatment and Swiss-style claims – methods of treatment for primary insomnia characterised by non-restorative sleep and for improving restorative quality of sleep – construction of claims – meaning of non-restorative sleep – meaning of characterised by non-restorative sleep – meaning of restorative quality of sleep – where fourth edition of Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV") incorporated by reference – construction of claims when read with DSM-IV – whether person skilled in the art must be familiar with DSM-IV– whether claims invalid for lack of clarity – whether invention not fully described in complete specification – whether claims invalid for lack of novelty or inventive step or fair basis – whether supply of respondents' products constitutes an infringement under s 117(1) read with sub-sec (2)(b) or (c) of Patents Act 1990 (Cth) – whether respondents' product is a staple commercial product – where respondents' product capable of being used for non-infringing methods of treatment outside patented indication – whether respondents' product information document and/or approved indication for respondents' product constitutes a statement or inducement to use the respondents' product so as to infringe the method of treatment claims by using it for the patented indication – whether Swiss-style claims infringed – whether respondents' product a medicament manufactured for treating a patient suffering from primary insomnia characterised by non-restorative sleep and improving restorative quality of sleep – whether respondents authorised infringement of method of treatment claims by medical practitioners prescribing respondents' product for patented indication – where patented indication and approved indication are different Held: claims of patent valid, method of treatment claims infringed by supply of respondents' product and by authorisation of medical practitioners' infringing use of respondents' product
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