Aspen Pharma Pty Ltd v H Lundbeck A/S [2013] FCA 324

Aspen Pharma Pty Ltd v H Lundbeck A/S [2013] FCA 324

The potential economic loss and erosion of valuable infringement rights to the first respondent (if a stay is granted and limitation periods begin to run), outweighs the speculative and controllable risk of unrecoverable costs to the applicants from any parallel or duplicated proceedings before the Commissioner. The applicants did not demonstrate material prejudice. Accordingly, the discretion to order a stay under s 44A(2) should not be exercised in their favour.

Parties
First Applicant: Aspen Pharma Pty Ltd; Second Applicant: Sandoz Pty Ltd; Third Applicant: Apotex Pty Ltd; Fourth Applicant: Alphapharm Pty Ltd; First Respondent: H Lundbeck A/S; Second Respondent: Commissioner of Patents
Jurisdiction
Australia
Judgment Date
09 April 2013
Procedural Posture
Interlocutory Application (stay) in an Appeal From the Administrative Appeals Tribunal / Application for Stay Pending Appeal; Reasons for Refusal of Stay
Outcome
Interlocutory application for stay refused with costs.
Legal Topics
Patents Extension of Term, Stay of Proceedings, Appeals From Administrative Appeals Tribunal, Interlocutory Relief, Practice and Procedure
Intellectual Property Law Administrative Law Patents Extension of Term Stay of Proceedings Appeals From Administrative Appeals Tribunal Interlocutory Relief Practice and Procedure

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Parties

Aspen Pharma Pty Ltd

First Applicant

Sandoz Pty Ltd

Second Applicant

Apotex Pty Ltd

Third Applicant

Alphapharm Pty Ltd

Fourth Applicant

H Lundbeck A/S

First Respondent

Commissioner of Patents

Second Respondent

Procedural Posture

Interlocutory Application (stay) in an Appeal From the Administrative Appeals Tribunal / Application for Stay Pending Appeal; Reasons for Refusal of Stay

Legal Issues

  1. 1 Whether a stay of the AAT decision affirming extension of time under Patents Act should be granted
  2. 2 Proper construction of s 223(2)(a) of the Patents Act 1990 (Cth) as to power to extend time to apply for extension of patent term
  3. 3 Whether s 70(4) of the Patents Act precludes granting extension of term after an invalid prior extension

Ratio Decidendi

The potential economic loss and erosion of valuable infringement rights to the first respondent (if a stay is granted and limitation periods begin to run), outweighs the speculative and controllable risk of unrecoverable costs to the applicants from any parallel or duplicated proceedings before the Commissioner. The applicants did not demonstrate material prejudice. Accordingly, the discretion to order a stay under s 44A(2) should not be exercised in their favour.

Court Disposition

Interlocutory application for stay refused with costs.

Orders

  • The applicants' interlocutory application for a stay filed on 24 December 2012 be refused with costs.