Mylan Health Pty Ltd (formerly BGP Products Pty Ltd) v Sun Pharma ANZ Pty Ltd (formerly Ranbaxy Australia Pty Ltd) (No 2) [2019] FCA 883

Mylan Health Pty Ltd (formerly BGP Products Pty Ltd) v Sun Pharma ANZ Pty Ltd (formerly Ranbaxy Australia Pty Ltd) (No 2) [2019] FCA 883

Although the first respondent achieved complete commercial success, it failed on a number of infringement and validity issues that occupied a not insignificant amount of hearing, preparation, evidence and submissions time. A discount was therefore justified, and because the first respondent did not propose an alternative percentage if apportionment were ordered, the applicants were ordered to pay 80% of the first respondent's costs.

Jurisdiction
Australia
Judgment Date
12 June 2019
Procedural Posture
Patent Proceeding Costs Determination / Determined on the Papers After Dismissal of the Applicants' Application and Revocation of Various Patent Claims on the First Respondent's Cross Claim
Outcome
Applicants ordered to pay 80% of the first respondent's costs of the proceeding including the cross-claim, with no other order as to costs.
Legal Topics
['costs of Patent Proceeding' 'apportionment of Costs' 'party/party Costs' 'patent Infringement and Validity Issues']
['intellectual Property' 'patents' 'costs'] ['costs of Patent Proceeding' 'apportionment of Costs' 'party/party Costs' 'patent Infringement and Validity Issues']

Case Brief

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Procedural Posture

Patent Proceeding Costs Determination / Determined on the Papers After Dismissal of the Applicants' Application and Revocation of Various Patent Claims on the First Respondent's Cross Claim

Legal Issues

  1. 1 ["Whether the unsuccessful applicants should pay all of the first respondent's costs of the proceeding including the cross-claim" 'Whether apportionment or a discount was justified because the first respondent was unsuccessful on some infringement and validity issues']

Ratio Decidendi

Although the first respondent achieved complete commercial success, it failed on a number of infringement and validity issues that occupied a not insignificant amount of hearing, preparation, evidence and submissions time. A discount was therefore justified, and because the first respondent did not propose an alternative percentage if apportionment were ordered, the applicants were ordered to pay 80% of the first respondent's costs.

Court Disposition

Applicants ordered to pay 80% of the first respondent's costs of the proceeding including the cross-claim, with no other order as to costs.

Orders

  • ["The applicants pay 80% of the first respondent's costs of the proceeding (including the cross-claim) as assessed or agreed." 'Order 1 does not displace any costs order previously made in the proceeding.' 'There be no other order as to costs.']