Apotex Pty Ltd v Les Laboratoires Servier (No 6) [2012] FCA 745

Apotex Pty Ltd v Les Laboratoires Servier (No 6) [2012] FCA 745

The stay was refused because Apotex was entitled to have its revocation proceeding, commenced in 2008 and already set down for trial, determined; the proposed stay period was uncertain and substantial; the Court was not satisfied that hearing the AC Patent issues together with or after the Divisional would be more efficient given different onuses, different claims and additional issues; no particular witness difficulty was shown; and determination of the AC Patent proceeding might itself narrow or obviate later Divisional disputes. The possible saving of costs and Servier's proposed undertakings did not outweigh those considerations.

Jurisdiction
Australia
Judgment Date
12 July 2012
Procedural Posture
Application for a Stay of Proceeding Pending the Outcome of a Divisional Application in the Patent Office / Interlocutory Application Dated 4 May 2012
Outcome
Servier's application for a stay of the proceeding was refused with costs.
Legal Topics
['stay of Proceedings' 'discretion' 'overarching Purpose of Civil Practice and Procedure' 'patent Revocation' 'patent Infringement' 'divisional Patent Application' 'patent Opposition']
['practice and Procedure' 'intellectual Property' 'patents'] ['stay of Proceedings' 'discretion' 'overarching Purpose of Civil Practice and Procedure' 'patent Revocation' 'patent Infringement' 'divisional Patent Application' 'patent Opposition']

Case Brief

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Procedural Posture

Application for a Stay of Proceeding Pending the Outcome of a Divisional Application in the Patent Office / Interlocutory Application Dated 4 May 2012

Legal Issues

  1. 1 ['Whether Federal Court proceeding No. NSD 657 of 2008 should be stayed until the Australian Patent Office grants or refuses Patent Application Number 2007203451 and any appeals are determined.' 'Whether a stay would be in the interests of justice having regard to s 37M of the Federal Court of Australia Act 1976 (Cth).' 'Whether overlap of issues and evidence between the AC Patent proceeding and the Divisional justified delaying a proceeding ready for trial.' "Whether delay, costs, witness convenience, public interest and the parties' procedural rights favoured or opposed a stay."]

Ratio Decidendi

The stay was refused because Apotex was entitled to have its revocation proceeding, commenced in 2008 and already set down for trial, determined; the proposed stay period was uncertain and substantial; the Court was not satisfied that hearing the AC Patent issues together with or after the Divisional would be more efficient given different onuses, different claims and additional issues; no particular witness difficulty was shown; and determination of the AC Patent proceeding might itself narrow or obviate later Divisional disputes. The possible saving of costs and Servier's proposed undertakings did not outweigh those considerations.

Court Disposition

Servier's application for a stay of the proceeding was refused with costs.

Orders

  • ['The interlocutory application dated 4 May 2012 be dismissed with costs.']