Federal Court of Australia
Federal Court of Australia
Abbey Laboratories Pty Ltd v Virbac (Australia) Pty Ltd [2024] FCA 1488 File number: NSD 698 of 2024
Judgment of: JACKMAN J
Date of judgment: 17 December 2024
Catchwords: PATENTS – application for an interlocutory injunction by patent holder – where generic recently launched – where patent holder is claiming for infringement – where patent alleged to be invalid – whether balance of convenience favours the grant of an injunction – where there has been substantial delay on the part of the patent holder – where detriment to the patent holder if the injunction is not granted is much more readily quantifiable in damages than the detriment to the generic – application dismissed
Cases cited: Sanofi-Aventis Deutschland GmbH v Alphapharm Pty Ltd (No 3) [2018] FCA 2060; (2018) 138 IPR 242
Division: General Division
Registry: New South Wales
National Practice Area: Intellectual Property
Sub-area: Patents and associated Statutes
Number of paragraphs: 27
Date of hearing: 17 December 2024
Counsel for the Applicant: Ms J Beaumont SC and Ms G Rubagotti
Solicitor for the Applicant: Bird & Bird
Counsel for the Respondent: Mr A Fox SC and Mr A Smorchevsky
Solicitor for the Respondent: Griffith Hack Lawyers
ORDERS NSD 698 of 2024
BETWEEN: ABBEY LABORATORIES PTY LTD
(ACN 156 000 430) Applicant
AND: VIRBAC (AUSTRALIA) PTY LTD
(ACN 003 268 871) Respondent
order made by: JACKMAN J DATE OF ORDER: 17 December 2024
THE COURT ORDERS THAT:
1. The interlocutory application dated 10 December 2024 be dismissed. 2. Virbac pay Abbey's costs of and incidental to the interlocutory application. THE COURT NOTES THAT: 3. Abbey undertakes to Virbac and to the Court to keep a full account of all sales of Levamox Duo occurring in Australia from the date of these orders to the date of the final determination of this proceeding by recording the following information in respect of each sale: (a) the customer name; (b) the date of invoice; (c) the quantity sold; (d) the unit price including any rebates, incentives or other discounts; and (e) Abbey's profit and the manner of calculating the profit. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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