AVENTIS PHARMA SA AND ANOR V PHARMACO (NZ) LIMITED AND ANOR HC AK CIV-2010-404-001670

AVENTIS PHARMA SA AND ANOR V PHARMACO (NZ) LIMITED AND ANOR HC AK CIV-2010-404-001670

The Court declined to consolidate or order the proceedings heard together because the judicial review and patent proceedings raise discrete issues with limited factual and legal overlap, the judicial review was ready for a short hearing sooner and could be determinative of the patent proceeding, and Aventis was...

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Citation
openlaw-d0a7c417_9aaf_4090_a914_ec4c86e8b193.pdf
Parties
First Plaintiff / Second Defendant: Aventis Pharma SA; Second Plaintiff / Third Defendant: Sanofi-Aventis New Zealand Limited; First Defendant: Pharmaco (NZ) Limited; Second Defendant / Plaintiff: InterPharma (NZ) Limited; First Defendant: Commissioner of Patents
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 November 2010
Procedural Posture
Judicial Review and Patent Infringement Proceedings / Case Management Conference (interlocutory Directions Issued)
Outcome
Proceedings to be heard separately; judicial review to be given an early fixture; case management and interlocutory directions issued; costs awarded to InterPharma on a 2B basis plus reasonable disbursements.
Legal Topics
Amendment of Patents, Judicial Review of Administrative Decisions, Consolidation of Proceedings, Interim Relief, Costs and Security for Damages, Discovery and Inspection, Patent Validity and Infringement
Patent Law Administrative Law Civil Procedure Amendment of Patents Judicial Review of Administrative Decisions Consolidation of Proceedings Interim Relief Costs and Security for Damages +2 more

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Parties

Aventis Pharma SA

First Plaintiff / Second Defendant

Sanofi-Aventis New Zealand Limited

Second Plaintiff / Third Defendant

Pharmaco (NZ) Limited

First Defendant

InterPharma (NZ) Limited

Second Defendant / Plaintiff

Commissioner of Patents

First Defendant

Procedural Posture

Judicial Review and Patent Infringement Proceedings / Case Management Conference (interlocutory Directions Issued)

Legal Issues

  1. 1 Whether the judicial review proceedings and patent infringement proceedings should be consolidated or tried together under r 10.12
  2. 2 Whether s 40(2) of the Patents Act 1953 precludes judicial review of an amendment to a patent absent fraud
  3. 3 Whether the Commissioner acted ultra vires in allowing amendments without required disclosure or explanation

Ratio Decidendi

The Court declined to consolidate or order the proceedings heard together because the judicial review and patent proceedings raise discrete issues with limited factual and legal overlap, the judicial review was ready for a short hearing sooner and could be determinative of the patent proceeding, and Aventis was adequately protected by the availability of damages given the impending patent expiry and prior refusal of interim injunction; accordingly the JR was to be given an early fixture and the patent proceedings to continue their own timetable.

Court Disposition

Proceedings to be heard separately; judicial review to be given an early fixture; case management and interlocutory directions issued; costs awarded to InterPharma on a 2B basis plus reasonable disbursements.

Orders

  • Proceedings not to be consolidated; judicial review to be given a fixture
  • Judicial review: plaintiff to file within seven working days redacted copies of the affidavits of Professor Tucker and Dr Parker in terms of InterPharma's reply memorandum schedule 1