H. Lundbeck A/S v Sandoz Pty Ltd [2022] HCA 4

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, EDELMAN, STEWARD AND GLEESON JJ

Matter No S22/2021

H. LUNDBECK A/S & ANOR APPELLANTS

AND

SANDOZ PTY LTD RESPONDENT

Matter No S23/2021

CNS PHARMA PTY LTD APPELLANT

AND

SANDOZ PTY LTD RESPONDENT

H. Lundbeck A/S v Sandoz Pty Ltd

CNS Pharma Pty Ltd v Sandoz Pty Ltd

[2022] HCA 4

Date of Hearing: 8 October 2021

Date of Judgment: 9 March 2022

S22/2021 & S23/2021

ORDER

In Matter No S22/2021:

1. Appeal allowed with costs.

2. Set aside orders 1, 2 and 3 made on 4 August 2020 and orders 1 and 2 made on 30 March 2021 of the Full Court of the Federal Court of Australia and, in their place, order that:

(a) the appeal and cross-appeal from the orders of the primary judge made on 19 February 2019 each be allowed in part;

(b) declare that the second respondent did not have rights to bring proceedings under s 79 of the Patents Act 1990 (Cth);

(c) orders 2 and 3 made by the primary judge on 19 February 2019 be set aside;

(d) declare that the first respondent is entitled to damages and pre-judgment interest calculated thereon;

(e) the matter be remitted to the primary judge for the recalculation of damages and pre-judgment interest payable to the first respondent;

(f) the parties be given liberty to apply to the primary judge for a stay of the remitted proceedings pending the determination of the proceedings relating to the licence granted to the appellant by the Commissioner of Patents on 11 April 2019 under s 223(9) of the Patents Act 1990 (Cth);

(g) the appellant pay the respondents' costs to date in the proceedings before the primary judge, and costs of the appeal and cross-appeal to the Full Court of the Federal Court of Australia; and

(h) the appeal and cross-appeal be otherwise dismissed.

In Matter No S23/2021:

Appeal dismissed with costs.

On appeal from the Federal Court of Australia