Apotex Pty Ltd v Les Laboratoires Servier (No 5) [2015] FCA 334

Apotex Pty Ltd v Les Laboratoires Servier (No 5) [2015] FCA 334

Costs were apportioned given Apotex's limited success on a discrete issue after a lengthy trial, where Servier succeeded on most substantive issues. The general rule for patentee paying costs on amendment applications was departed from as opponents consumed time unsuccessfully. Offers of compromise and Calderbank offers did not warrant further adjustment due to lack of evidence of more favourable outcome or unreasonable refusal.

Parties
Applicant / Cross Respondent: Apotex Pty Ltd ACN 096 916 148; Respondent / Cross Claimant: Les Laboratoires Servier; Respondent / Cross Claimant: Servier Laboratories (Aust) Pty Ltd; Opponent: Actavis Pty Limited ACN 003 854 626; Cross Respondent: Symbion Pty Ltd ACN 000 875 034
Jurisdiction
Australia
Judgment Date
12 March 2015
Procedural Posture
Patent Litigation and Application to Amend Patent / Post Trial, Post Amendment Application, Costs Determination
Outcome
Costs apportioned as between parties following trial and amendment application; no order affected by offers of compromise.
Legal Topics
Costs, Patent Amendment, Offer of Compromise, Judicial Discretion
Intellectual Property Civil Procedure Costs Patent Amendment Offer of Compromise Judicial Discretion

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Parties

Apotex Pty Ltd ACN 096 916 148

Applicant / Cross Respondent

Les Laboratoires Servier

Respondent / Cross Claimant

Servier Laboratories (Aust) Pty Ltd

Respondent / Cross Claimant

Actavis Pty Limited ACN 003 854 626

Opponent

Symbion Pty Ltd ACN 000 875 034

Cross Respondent

Procedural Posture

Patent Litigation and Application to Amend Patent / Post Trial, Post Amendment Application, Costs Determination

Legal Issues

  1. 1 Appropriate apportionment of costs in patent litigation where the successful party lost on most issues; whether departure from the general rule in amendment applications is warranted; effect and operation of offers of compromise (r 25.14(3) of the Federal Court Rules 2011 (Cth)); application of Calderbank principles

Ratio Decidendi

Costs were apportioned given Apotex's limited success on a discrete issue after a lengthy trial, where Servier succeeded on most substantive issues. The general rule for patentee paying costs on amendment applications was departed from as opponents consumed time unsuccessfully. Offers of compromise and Calderbank offers did not warrant further adjustment due to lack of evidence of more favourable outcome or unreasonable refusal.

Court Disposition

Costs apportioned as between parties following trial and amendment application; no order affected by offers of compromise.

Orders

  • Apotex and Actavis pay 60% of Servier's costs of the application to amend.
  • Apotex pay 66.67% of Servier's costs of the proceedings.