Arrow Pharmaceuticals Limited v Merck & Co Inc

In the case of Arrow Pharmaceuticals Limited v Merck & Co Inc, Arrow, an Australian pharmaceutical company, sued Merck, a United States corporation, for infringement of patents. The dispute centred on the disclosure of confidential information regarding Arrow's invention, which Arrow claimed was unlawfully shared by Merck. The case was heard in the Federal Court of Australia.

The primary legal issues the court had to address were whether the information was protected by legal professional privilege and whether there was a waiver of such privilege. The court had to determine whether the disclosure of a standard form document containing information about the invention, sent to Merck's in-house patent department, constituted a waiver of the privilege. Additionally, the court had to decide which law to apply—Australian or United States law—to the issue of privilege.

The court held that the standard form document was sent to obtain legal advice and services, which constituted the immediate purpose. The ultimate purpose of filing a patent application did not detract from this immediate purpose. Consequently, the information was protected by legal professional privilege. The court further held that there was no waiver of privilege as the disclosure was made in the course of obtaining legal advice and services. Regarding the applicable law, the court found that Australian law was applicable. Therefore, the court ruled in favour of Arrow, finding that the information was protected by legal professional privilege and that there was no waiver of such privilege.

Arrow was awarded damages for the infringement of its patents and costs of the proceedings. The court's decision reinforces the importance of protecting confidential information in patent applications and the application of legal professional privilege in cross-border litigation.