Generic Health Pty Ltd v Bayer Pharma Aktiengesellschaft [No 2] [2018] FCAFC 210

Generic Health Pty Ltd v Bayer Pharma Aktiengesellschaft [No 2] [2018] FCAFC 210

Although Generic Health was successful in part and would recover some of the judgment it had paid, Bayer was substantially successful on the whole appeal. It would be unjust and unfair for Bayer not to receive a not insignificant proportion of its costs, so Generic Health should pay 40% of Bayer's costs of the appeal.

Jurisdiction
Australia
Judgment Date
27 November 2018
Procedural Posture
Appeal in Intellectual Property Patent Proceeding / Costs of the Appeal Following Principal Judgment
Outcome
Appeal allowed in part; appellants ordered to pay 40% of respondents' costs of the appeal.
Legal Topics
['costs of Appeal' 'partial Success on Appeal' 'apportionment of Costs' 'reimbursement of Overpayment' 'interest']
['intellectual Property' 'patents' 'costs'] ['costs of Appeal' 'partial Success on Appeal' 'apportionment of Costs' 'reimbursement of Overpayment' 'interest']

Case Brief

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Procedural Posture

Appeal in Intellectual Property Patent Proceeding / Costs of the Appeal Following Principal Judgment

Legal Issues

  1. 1 ['What order should be made for the costs of the appeal.' "Whether Generic Health's partial success warranted Bayer paying part of Generic Health's costs or each party bearing its own costs." "Whether Bayer's substantial success over the whole appeal warranted an order that Generic Health pay a proportion of Bayer's costs."]

Ratio Decidendi

Although Generic Health was successful in part and would recover some of the judgment it had paid, Bayer was substantially successful on the whole appeal. It would be unjust and unfair for Bayer not to receive a not insignificant proportion of its costs, so Generic Health should pay 40% of Bayer's costs of the appeal.

Court Disposition

Appeal allowed in part; appellants ordered to pay 40% of respondents' costs of the appeal.

Orders

  • ['The appeal be allowed in part.' 'In Order 1 of the orders of the Court made on 4 April 2017: (a) the sum of $25,437,966 be replaced by $24,929,207; and (b) the sums of $5,923,735 and $5,300 be replaced respectively by $5,805,260 and $5,194.' 'The Respondents pay to the Appellants the amount of $634,653 by way of...