Alphapharm Pty Ltd v H Lundbeck A/S (No 2) [2008] FCA 1036

Alphapharm Pty Ltd v H Lundbeck A/S (No 2) [2008] FCA 1036

A stay of the order removing the extension of term from the Register is warranted due to doubt over the Court's power to reinstate the entry if Lundbeck's appeal succeeds, and to avoid hardship. Costs should be apportioned by reference to the relative success of parties on the main issues, with the patentee (Lundbeck) recovering 40% of its costs, apportioned between the generic companies according to their level of participation, reflecting the mixed outcomes.

Jurisdiction
Australia
Judgment Date
10 July 2008
Procedural Posture
Patent/infringement/revocation/appeal / Post Trial Order and Costs Determination After Primary Judgment; Reasons for Orders and Costs
Outcome
Orders made for stay of removal of particulars from Register pending appeal, apportionment of costs between parties, and injunctions; appeal in NSD 1078 of 2006 (Lundbeck v Commissioner of Patents) dismissed.
Legal Topics
['patent Validity' 'extension of Patent Term' 'infringement' 'rectification of Register' 'costs' 'stay of Orders' 'appeal Procedure']
['intellectual Property' 'patents'] ['patent Validity' 'extension of Patent Term' 'infringement' 'rectification of Register' 'costs' 'stay of Orders' 'appeal Procedure']

Case Brief

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Procedural Posture

Patent/infringement/revocation/appeal / Post Trial Order and Costs Determination After Primary Judgment; Reasons for Orders and Costs

Legal Issues

  1. 1 ['Whether to grant a stay of the order removing extension of patent term from Register pending appeal' "Meaning and application of 'costs following the event' in complex, multi-party, multi-issue litigation" 'Propriety of permanent injunction and discovery orders following findings of infringement/patent invalidity']

Ratio Decidendi

A stay of the order removing the extension of term from the Register is warranted due to doubt over the Court's power to reinstate the entry if Lundbeck's appeal succeeds, and to avoid hardship. Costs should be apportioned by reference to the relative success of parties on the main issues, with the patentee (Lundbeck) recovering 40% of its costs, apportioned between the generic companies according to their level of participation, reflecting the mixed outcomes.

Court Disposition

Orders made for stay of removal of particulars from Register pending appeal, apportionment of costs between parties, and injunctions; appeal in NSD 1078 of 2006 (Lundbeck v Commissioner of Patents) dismissed.

Orders

  • ['Alphapharm found to have infringed claims 1, 3, 6 of Patent No 623144 between Nov 2002 and 27 May 2004.' 'Alphapharm restrained from exploiting or authorising exploitation of the Patent.' 'Alphapharm and Arrow succeed in having extension of patent term removed, but stay granted pending appeal.' 'Patent claim 5...