Bristol-Myers Squibb Company v Apotex Pty Ltd (No 2) [2010] FCA 901

Bristol-Myers Squibb Company v Apotex Pty Ltd (No 2) [2010] FCA 901

The costs discretion under s 105(2) of the Patents Act should be exercised so that Otsuka, having sought amendment of its patent claims in the context of ongoing infringement proceedings and thereby exposing Apotex to additional costs, should bear Apotex’s costs reasonably and properly incurred in relation to the amendment application, regardless of Apotex’s ultimate lack of opposition.

Jurisdiction
Australia
Judgment Date
23 August 2010
Procedural Posture
Patent Infringement and Amendment Application / Costs Decision Following Amendment Application
Outcome
Application for costs by Apotex granted against Otsuka.
Legal Topics
['patent Amendment' 'costs Discretion' 'patent Infringement Proceedings']
['intellectual Property Law'] ['patent Amendment' 'costs Discretion' 'patent Infringement Proceedings']

Case Brief

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Procedural Posture

Patent Infringement and Amendment Application / Costs Decision Following Amendment Application

Legal Issues

  1. 1 ["Whether the applicant for amendment should pay the respondent's costs of the amendment application in the context of ongoing infringement litigation."]

Ratio Decidendi

The costs discretion under s 105(2) of the Patents Act should be exercised so that Otsuka, having sought amendment of its patent claims in the context of ongoing infringement proceedings and thereby exposing Apotex to additional costs, should bear Apotex’s costs reasonably and properly incurred in relation to the amendment application, regardless of Apotex’s ultimate lack of opposition.

Court Disposition

Application for costs by Apotex granted against Otsuka.

Orders

  • ["The second applicant pay the respondent's costs of and incidental to the notice of motion filed by the second applicant on 18 March 2010."]