Merck & Co., Inc. v Arrow Pharmaceuticals Ltd [2004] FCAFC 152

Merck & Co., Inc. v Arrow Pharmaceuticals Ltd [2004] FCAFC 152

It is inappropriate to determine the meaning of 'publicly available' outside proper procedural orders, and dismissal of the motion does not preclude Merck from raising the issue at trial; therefore, leave to appeal should be dismissed.

Parties
Applicant: Merck & Co., Inc.; Respondent: Arrow Pharmaceuticals Ltd
Jurisdiction
Australia
Judgment Date
26 March 2004
Procedural Posture
Application for Leave to Appeal / Dismissal of Application for Leave to Appeal
Outcome
application dismissed
Legal Topics
Patent Revocation, Invalidity, Procedural Compliance
Intellectual Property Patent Revocation Invalidity Procedural Compliance

Case Brief

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Parties

Merck & Co., Inc.

Applicant

Arrow Pharmaceuticals Ltd

Respondent

Procedural Posture

Application for Leave to Appeal / Dismissal of Application for Leave to Appeal

Legal Issues

  1. 1 Whether the acts particularised by Arrow constitute making information publicly available under the Patents Act 1990 (Cth)
  2. 2 Adequacy of particulars provided under Order 58 r 15
  3. 3 Appropriate procedural steps regarding access to information prior to trial

Ratio Decidendi

It is inappropriate to determine the meaning of 'publicly available' outside proper procedural orders, and dismissal of the motion does not preclude Merck from raising the issue at trial; therefore, leave to appeal should be dismissed.

Court Disposition

application dismissed

Orders

  • The application be dismissed.
  • The applicant for leave to appeal pay the costs of the respondent to the application for leave.