Interpharma v Aventis Pharma SA [2011] FCA 32

This case concerned alleged infringements of a patent by a generic pharmaceutical company. The owner of the patent sought injunctions to restrain the supply of the drug in question by the generic pharmaceutical company. The court refused to grant the injunction after considering the three main questions relevant to an injunction application.

Was there a serious question to be tried?

Yes. The court held the patent holder had established a prima facie case. Namely, if the evidence remains as it is there is a probability that at trial it would be entitled to relief.

Would the patent holder suffer irreparable harm for which damages will not be an adequate remedy?

No. The court found damages can compensate for lost sales and decreased profits. Moreover the generic pharmaceutical company gave an undertaking as to damages and put in place a $10m bank guarantee to meet any order to pay damages. The court found no unquantifiable losses likely to occur particularly as the patent was shortly expiring.

Whether the balance of convenience favours granting interlocutory relief?

No. In addition, the court found there had been undue delay of 10 months after finding out that generic pharmaceutical company intended to launch products that would infringe their patent.

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