Interpharma Pty Ltd v Aventis Pharma SA [2011] FCA 32

Interpharma Pty Ltd v Aventis Pharma SA [2011] FCA 32

The Aventis parties were not entitled to interlocutory relief. Although there was a serious question to be tried because Interpharma's and Hospira's invalidity arguments were not sufficiently strong at the provisional level to negate the alleged infringement case, the evidence showed that damages would be an adequate remedy for the Aventis parties. In addition, the Aventis parties had unduly and inadequately explainedly delayed seeking relief despite knowing from early 2010 of the proposed generic launches after 6 February 2011, and that delay meant the balance of convenience was against granting interlocutory injunctions.

Jurisdiction
Australia
Judgment Date
01 February 2011
Procedural Posture
Patents; Practice and Procedure; Application for Interlocutory Injunctions Restraining Alleged Threatened Infringements of Australian Patent No. 666859 / Interlocutory Application Heard Urgently Before Expiry of Australian Patent No. 591309
Outcome
The cross-claimants' applications for interlocutory relief were dismissed and costs were reserved.
Legal Topics
['interlocutory Injunctions' 'threatened Patent Infringement' 'adequacy of Damages' 'balance of Convenience' 'delay' 'patent Validity' 'patent Infringement by Supply' 'claim Construction']
['patents' 'practice and Procedure'] ['interlocutory Injunctions' 'threatened Patent Infringement' 'adequacy of Damages' 'balance of Convenience' 'delay' 'patent Validity' 'patent Infringement by Supply' 'claim Construction']

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Procedural Posture

Patents; Practice and Procedure; Application for Interlocutory Injunctions Restraining Alleged Threatened Infringements of Australian Patent No. 666859 / Interlocutory Application Heard Urgently Before Expiry of Australian Patent No. 591309

Legal Issues

  1. 1 ['Whether the Aventis parties established a serious question to be tried in respect of alleged infringement of Australian Patent No. 666859 despite invalidity arguments by Interpharma and Hospira.' 'Whether the Aventis parties would suffer irreparable harm for which damages would not be an adequate remedy if interlocutory relief were refused.' "Whether the balance of convenience favoured granting or refusing interlocutory relief, including the effect of the Aventis parties' delay." "Whether Interpharma's and Hospira's proposed supply of docetaxel dosage forms after 6 February 2011 would infringe claims 1 to 4 and 6 of the patent under s 117 of the Patents Act." 'Whether the patent was arguably invalid for lack of novelty, lack of inventive step, false suggestion, lack of fair basis or lack of utility.']

Ratio Decidendi

The Aventis parties were not entitled to interlocutory relief. Although there was a serious question to be tried because Interpharma's and Hospira's invalidity arguments were not sufficiently strong at the provisional level to negate the alleged infringement case, the evidence showed that damages would be an adequate remedy for the Aventis parties. In addition, the Aventis parties had unduly and inadequately explainedly delayed seeking relief despite knowing from early 2010 of the proposed generic launches after 6 February 2011, and that delay meant the balance of convenience was against granting interlocutory injunctions.

Court Disposition

The cross-claimants' applications for interlocutory relief were dismissed and costs were reserved.

Orders

  • ["NSD 1373 of 2010: Upon the undertaking as set out in Annexure A being given, the cross-claimants' application for interlocutory relief be dismissed." "NSD 1373 of 2010: Costs of the cross-claimants' application for interlocutory relief be reserved." "NSD 1521 of 2010: The cross-claimants' application for...