Sanofi-Aventis Australia Pty Ltd v Apotex Pty Ltd [2010] FCA 601

Sanofi-Aventis Australia Pty Ltd v Apotex Pty Ltd [2010] FCA 601

The court found that there has not been a relevant change in circumstances sufficient to justify varying the interlocutory orders. There remains a serious question to be tried as to whether Leflunomide is a staple commercial product and whether Apotex has reason to believe its product would be put to an infringing...

Source-derived case information.

Parties
First Applicant: Sanofi-Aventis Australia Pty Ltd ACN 008 558 807; Second Applicant: Sanofi-Aventis Deutschland GmbH; Third Applicant: Aventisbub II Incorporated; Respondent: Apotex Pty Ltd ACN 096 916 148
Jurisdiction
Australia
Judgment Date
08 June 2010
Procedural Posture
Interlocutory Application / Application to Vary Interlocutory Orders
Outcome
Amended notice of motion to vary orders dismissed except by consent to limited variation; costs awarded to applicants.
Legal Topics
Patents, Interlocutory Injunctions, Variation of Interlocutory Orders
Intellectual Property Law Patents Interlocutory Injunctions Variation of Interlocutory Orders

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Summary, issues, holding and outcome

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Parties

Sanofi-Aventis Australia Pty Ltd ACN 008 558 807

First Applicant

Sanofi-Aventis Deutschland GmbH

Second Applicant

Aventisbub II Incorporated

Third Applicant

Apotex Pty Ltd ACN 096 916 148

Respondent

Procedural Posture

Interlocutory Application / Application to Vary Interlocutory Orders

Legal Issues

  1. 1 Whether interlocutory orders restraining infringement and use of product information should be varied due to change in Apotex's proposed conduct and product information
  2. 2 Whether there is a serious question to be tried regarding infringement of Australian Patent No 670,491 under s 117(2)(b) and (c) of the Patents Act 1990 (Cth)

Ratio Decidendi

The court found that there has not been a relevant change in circumstances sufficient to justify varying the interlocutory orders. There remains a serious question to be tried as to whether Leflunomide is a staple commercial product and whether Apotex has reason to believe its product would be put to an infringing use. Apotex’s own pleadings and particulars support the ongoing relevance of the restraint.

Court Disposition

Amended notice of motion to vary orders dismissed except by consent to limited variation; costs awarded to applicants.

Orders

  • By consent, the Orders of 30 October 2008 varied by adding to Order 2: 'AND PROVIDED that it will not be a breach of this Order for the respondent to reproduce, distribute or otherwise deal with a Product Information in the form of Annexure A to this Order'.
  • The amended notice of motion filed 8 June 2010 (and notice of motion filed 19 April 2010) otherwise dismissed.