Merck Sharp & Dohme Corporation v Pfizer Inc [2021] FCA 57

Merck Sharp & Dohme Corporation v Pfizer Inc [2021] FCA 57

The adjournment was granted because Dr Michon's inability to participate arose through no fault of Pfizer, could not have been foretold, and affected evidence that was important to Pfizer's defence of the patent and not shown to duplicate Professor Williams' evidence. MSD's proposed course of reading Dr Michon's affidavit without cross-examination and abandoning the conclave, joint report and concurrent evidence process would not sufficiently mitigate the prejudice to Pfizer or serve the proper conduct of complex patent proceedings. MSD's asserted commercial prejudice was contingent because it was already subject to injunctions preventing launch of the MSD vaccine, and its additional...

Jurisdiction
Australia
Judgment Date
03 February 2021
Procedural Posture
Interlocutory Application in Patent Proceedings / Application to Vacate and Adjourn Trial Hearing
Outcome
Pfizer's interlocutory application to vacate and adjourn the hearing was granted; the trial listed to commence on 1 March 2021 and existing pre-trial directions were vacated, new timetabling orders were made, and Pfizer was ordered to pay MSD's costs of the application and costs thrown away by the adjournment.
Legal Topics
['adjournment of Hearing' 'expert Evidence' 'patent Revocation and Threatened Infringement' 'prejudice and Case Management' 'costs Thrown Away']
['practice and Procedure' 'intellectual Property' 'patents'] ['adjournment of Hearing' 'expert Evidence' 'patent Revocation and Threatened Infringement' 'prejudice and Case Management' 'costs Thrown Away']

Case Brief

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Procedural Posture

Interlocutory Application in Patent Proceedings / Application to Vacate and Adjourn Trial Hearing

Legal Issues

  1. 1 ["Whether the three week hearing listed to commence on 1 March 2021 should be vacated and adjourned because one of Pfizer's two expert witnesses was unable to participate." "Whether proceeding without Dr Michon's participation, while allowing his affidavit to be read without certain objections, would sufficiently mitigate prejudice to Pfizer." 'How the prejudice to Pfizer if the adjournment were refused should be balanced against the prejudice to MSD if the adjournment were granted.' 'Whether costs should be ordered in favour of MSD despite the adjournment being caused through no fault of Pfizer.']

Ratio Decidendi

The adjournment was granted because Dr Michon's inability to participate arose through no fault of Pfizer, could not have been foretold, and affected evidence that was important to Pfizer's defence of the patent and not shown to duplicate Professor Williams' evidence. MSD's proposed course of reading Dr Michon's affidavit without cross-examination and abandoning the conclave, joint report and concurrent evidence process would not sufficiently mitigate the prejudice to Pfizer or serve the proper conduct of complex patent proceedings. MSD's asserted commercial prejudice was contingent because it was already subject to injunctions preventing launch of the MSD vaccine, and its additional...

Court Disposition

Pfizer's interlocutory application to vacate and adjourn the hearing was granted; the trial listed to commence on 1 March 2021 and existing pre-trial directions were vacated, new timetabling orders were made, and Pfizer was ordered to pay MSD's costs of the application and costs thrown away by the adjournment.

Orders

  • ['Order 13 of the Orders of Justice Burley made on 13 December 2019 be vacated.' 'The matter be listed for trial from 18 to 29 October 2021 and for closing legal submissions from 1 to 3 December 2021.' 'Order 6 of the Order of Justice Burley made on 22 December 2020 be amended to replace the reference to the hearing...