Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42

Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42

The majority (Crennan, Bell and Gageler JJ) held that reg 22.11(4)(b) of the Patents Regulations 1991 (Cth) excludes only the first time requirement in s 71(2) (that the application must be lodged during the term of the patent) from the Commissioner's remedial power to grant extensions of time under s 223(2)(a) of the Patents Act 1990 (Cth); the second time requirement (application within six months after the latest of three specified dates) may be extended by the Commissioner. Accordingly, the Full Court had not erred in so concluding.

Parties
Appellant: Alphapharm Pty Ltd; First Respondent: H Lundbeck A/S; Second to Fifth Respondents: Second to fifth respondents
Jurisdiction
Australia
Judgment Date
05 November 2014
Procedural Posture
Appeal / High Court Appeal From Full Court of the Federal Court of Australia
Outcome
Appeal dismissed with costs.
Legal Topics
Patents, Extension of Term, Statutory Construction, Extension of Time
Intellectual Property Patents Extension of Term Statutory Construction Extension of Time

Case Brief

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Parties

Alphapharm Pty Ltd

Appellant

H Lundbeck A/S

First Respondent

Second to fifth respondents

Second to Fifth Respondents

Procedural Posture

Appeal / High Court Appeal From Full Court of the Federal Court of Australia

Legal Issues

  1. 1 Whether s 223(2)(a) of the Patents Act 1990 (Cth) confers power on the Commissioner to extend time for making an application under s 70(1) for extension of term of a patent, in light of s 223(11) and reg 22.11(4)(b) of the Patents Regulations 1991 (Cth)

Ratio Decidendi

The majority (Crennan, Bell and Gageler JJ) held that reg 22.11(4)(b) of the Patents Regulations 1991 (Cth) excludes only the first time requirement in s 71(2) (that the application must be lodged during the term of the patent) from the Commissioner's remedial power to grant extensions of time under s 223(2)(a) of the Patents Act 1990 (Cth); the second time requirement (application within six months after the latest of three specified dates) may be extended by the Commissioner. Accordingly, the Full Court had not erred in so concluding.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.