Apotex Pty Ltd v Les Laboratoires Servier (No 2)

The case involves a dispute between Apotex Pty Ltd and Les Laboratoires Servier regarding patent amendments under the Patents Act 1990 (Cth). The central issue before the court was whether Servier's proposed amendments to their patent claims were allowable and should be permitted. Servier sought to amend certain claims of their patent relating to the manufacture of perindopril tert-butylamine. Apotex opposed the amendments, arguing that they were not adequately disclosed in the original specification and that Servier had delayed unreasonably in seeking the amendments.

The court had to decide if the proposed amendments to the patent claims were allowable under sections 102(1) and 102(2) of the Patents Act, which require that amendments must be in substance disclosed in the original specification and fairly based on that disclosure. Additionally, the court needed to exercise its discretion under section 105 of the Act to determine whether the amendments should be allowed, considering factors such as delay, unfair advantage, and other relevant circumstances.

The court found that the proposed amendments were allowable under section 102 as they were in substance disclosed in the specification as filed. The specification contained sufficient details about the α crystalline form of perindopril salt, which was relevant to the claims in question. The court also noted that the amendments were fairly based on the disclosure. Regarding the exercise of discretion under section 105, the court rejected Apotex's arguments about Servier's conduct, finding that Servier had not acted unreasonably and had not sought to gain an unfair advantage. Consequently, the court allowed the amendments.

The final orders of the court were to dismiss the notice of motion filed by Apotex, to require Servier to pay Apotex's costs of the motion, and to stay the payment order until a specified date.