Bristol-Myers Squibb Company v Apotex Pty Ltd (No 4) [2012] FCA 1433

Bristol-Myers Squibb Company v Apotex Pty Ltd (No 4) [2012] FCA 1433

Leave should be granted to the applicants to rely on Reference Example 1 and Reference Example 2 in the patent specification as experimental proof, as r 34.50 is engaged, the relevant procedural and fairness considerations favour such leave, and neither s 136 nor s 135 of the Evidence Act require, on the facts, limitation or exclusion of this evidence.

Jurisdiction
Australia
Judgment Date
14 December 2012
Procedural Posture
Intellectual Property (patent Infringement and Validity) / Interlocutory Application Regarding Admissibility and Evidentiary Use of Experimental Proof in Patent Specification
Outcome
Leave granted to the applicants to rely on Reference Example 1 and Reference Example 2 in the specification of Australian Patent No. 2002334413 as experimental proof.
Legal Topics
['admissibility of Experimental Proof' 'patent Infringement Proceedings' 'use of Specification as Evidence' 'hearsay in Patent Litigation']
['intellectual Property' 'evidence'] ['admissibility of Experimental Proof' 'patent Infringement Proceedings' 'use of Specification as Evidence' 'hearsay in Patent Litigation']

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Procedural Posture

Intellectual Property (patent Infringement and Validity) / Interlocutory Application Regarding Admissibility and Evidentiary Use of Experimental Proof in Patent Specification

Legal Issues

  1. 1 ['Whether leave should be granted to rely on Reference Example 1 and Reference Example 2 in the patent specification as experimental proof' 'Whether s 136 or s 135 of the Evidence Act 1995 (Cth) applies to limit use of specification examples as evidence' 'Whether r 34.50 of the Federal Court Rules 2011 regarding experimental proof applies to pre-litigation experiments']

Ratio Decidendi

Leave should be granted to the applicants to rely on Reference Example 1 and Reference Example 2 in the patent specification as experimental proof, as r 34.50 is engaged, the relevant procedural and fairness considerations favour such leave, and neither s 136 nor s 135 of the Evidence Act require, on the facts, limitation or exclusion of this evidence.

Court Disposition

Leave granted to the applicants to rely on Reference Example 1 and Reference Example 2 in the specification of Australian Patent No. 2002334413 as experimental proof.

Orders

  • ['Leave be granted to the applicants to rely on Reference Example 1 and Reference Example 2 in the specification of Australian Patent No. 2002334413 as experimental proof.']