Alphapharm Pty Ltd v H Lundbeck A/S (No 2)

In the case of Alphapharm Pty Ltd v H Lundbeck A/S (No 2), the primary legal issue before the court was whether a permanent injunction should be ordered against Alphapharm to prevent it from exploiting a patent owned by H Lundbeck A/S. The court was also required to decide if it had the power to order the reinstatement of particulars of an extension of term in the Register of Patents if H Lundbeck A/S's appeal was successful. The dispute centred around the validity and infringement of certain claims of a patent related to the drug escitalopram. The court found that Alphapharm had infringed specific claims of the patent and that a permanent injunction was necessary to prevent further exploitation of the patent by Alphapharm, except as permitted by certain sections of the Patents Act 1990. Additionally, the court held that it had the power to order the reinstatement of particulars of the extension of term in the Register of Patents if H Lundbeck A/S's appeal was successful, and therefore granted a stay on the removal of these particulars.

The court's reasoning was based on the need to balance the interests of both parties. While it recognised that H Lundbeck A/S was willing to accept an undertaking from Alphapharm pending trial, this should not preclude it from seeking a permanent injunction if an agreement could not be reached. The court also determined that there was some doubt about its power to order the reinstatement of particulars of the extension of term in the Register of Patents, and therefore granted a stay on the removal of these particulars to prevent potential injustice to H Lundbeck A/S if its appeal was successful. The court emphasised the importance of ensuring that any decision did not cause significant harm to either party and aimed to maintain a fair and balanced approach in its rulings. The final orders included a permanent injunction against Alphapharm, a stay on the removal of particulars of the extension of term, and provisions for costs and damages to be assessed and paid by Alphapharm.