Alphapharm Pty Ltd v H Lundbeck A/S

The High Court of Australia considered an appeal by Alphapharm Pty Ltd against H Lundbeck A/S concerning an application for an extension of the term of a patent for the pharmaceutical substance escitalopram. The dispute centred on whether the Commissioner of Patents had the power to grant an extension of time for Lundbeck to make its application for an extension of the patent term, which had expired on 13 June 2009. Lundbeck had made its application during the patent term but more than six months after the latest of the dates specified in s 71(2) of the *Patents Act 1990* (Cth).

The primary legal issue before the High Court was the interpretation of s 71(2) of the *Patents Act 1990* (Cth) in conjunction with s 223(2) of the same Act. Specifically, the court had to determine whether the Commissioner of Patents possessed the power under s 223(2) to extend the time limit prescribed by s 71(2) for making an application for an extension of a patent term, or if the time limit in s 71(2) was an absolute bar that could not be extended.

The High Court reasoned that s 223(2) of the *Patents Act 1990* (Cth) conferred a broad power on the Commissioner to extend time limits prescribed by the Act, subject to certain exceptions. The court found that the time requirement in s 71(2) was not an absolute bar to the Commissioner's power to extend time. Instead, the court interpreted the relevant regulation, reg 22.11(4)(b), as excluding only the first time requirement in s 71(2) from the general remedial power in s 223(2)(a). Therefore, the Commissioner had the power to extend the second time requirement stipulated in s 71(2). The appeal was dismissed with costs.