H Lundbeck A/S v Alphapharm Pty Ltd [2016] FCA 1232

H Lundbeck A/S v Alphapharm Pty Ltd [2016] FCA 1232

Neither issue estoppel nor the doctrine of abuse of process preclude the respondents from contesting the status of Lundbeck Australia as exclusive licensee of the Lexapro patent between 14 June 2009 and 9 December 2012, as this question was not previously determined between the relevant parties or at the relevant time, nor was there any relevant judicial determination or oppression present.

Parties
First Applicant: H Lundbeck A/S; Second Applicant: Lundbeck Australia Pty Ltd ACN 070 094 290; Respondent: Alphapharm Pty Ltd; Respondent: Apotex Pty Ltd; Respondent: Aspen Pharma Pty Ltd; Respondent: Sandoz Pty Ltd
Jurisdiction
Australia
Judgment Date
21 October 2016
Procedural Posture
Intellectual Property / Determination of Separate Questions (issue Estoppel and Abuse of Process) Prior to Amendment Applications
Outcome
Respondents are not estopped nor precluded from raising/placing in issue the status of exclusive licensee for the relevant period; the answers to both separate questions are 'No'.
Legal Topics
Patents, Exclusive Licence, Issue Estoppel, Abuse of Process, Amendment of Pleadings
Intellectual Property Patents Exclusive Licence Issue Estoppel Abuse of Process Amendment of Pleadings

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Parties

H Lundbeck A/S

First Applicant

Lundbeck Australia Pty Ltd ACN 070 094 290

Second Applicant

Alphapharm Pty Ltd

Respondent

Apotex Pty Ltd

Respondent

Aspen Pharma Pty Ltd

Respondent

Sandoz Pty Ltd

Respondent

Procedural Posture

Intellectual Property / Determination of Separate Questions (issue Estoppel and Abuse of Process) Prior to Amendment Applications

Legal Issues

  1. 1 Whether respondents are estopped from raising the issue of exclusive licensee status for the relevant period
  2. 2 Whether respondents should be precluded from placing the status of exclusive licensee in issue by reasons of abuse of process

Ratio Decidendi

Neither issue estoppel nor the doctrine of abuse of process preclude the respondents from contesting the status of Lundbeck Australia as exclusive licensee of the Lexapro patent between 14 June 2009 and 9 December 2012, as this question was not previously determined between the relevant parties or at the relevant time, nor was there any relevant judicial determination or oppression present.

Court Disposition

Respondents are not estopped nor precluded from raising/placing in issue the status of exclusive licensee for the relevant period; the answers to both separate questions are 'No'.

Orders

  • In each proceeding, answer to separate question (a): No (no estoppel).
  • In each proceeding, answer to separate question (b): No (no abuse of process).