Boehringer Ingelheim Animal Health USA Inc. v Intervet International B.V

The case of Boehringer Ingelheim Animal Health USA Inc. v Intervet International B.V involved a dispute regarding the patentability of a combination injectable formulation intended for the control of parasites in animals. The dispute was heard in the Federal Court of Australia, where the central legal issues involved the novelty, inventive step, and utility of the claimed invention. The opponent argued that the invention lacked novelty due to a prior Chinese patent application, did not involve an inventive step, and failed to meet the utility requirement as promised in the patent application.

The court found that the alleged invention was novel because the Chinese patent application did not describe the intended type of formulation or any manufacturing steps. Furthermore, the opponent's reliance on the Chinese patent application to establish a lack of inventive step was deemed insufficient, as the application did not provide assistance in formulating the injectable combination. The court held that the invention was a combination injectable formulation in a non-aqueous solvent system where the macrocyclic lactone was in solution and the levamisole was a salt in particulate form. This was a significant departure from known formulations and addressed the issue of chemical incompatibility between levamisole and macrocyclic lactones.

Regarding utility, the court concluded that the patent application's promise of stability under accelerated conditions was not contradicted by the evidence presented. The experimental evidence showed that the formulations met the required stability criteria, thereby negating the opponent's contention of inutility. The court emphasised that the utility of a patent must be assessed in relation to the breadth of the claims and that all that is within the scope of a claim must be useful.

Ultimately, the court dismissed the appeal and ordered that the patent application proceed to grant. The court also directed that Boehringer pay Intervet's costs of the proceeding, as agreed or assessed, and requested the parties to prepare minutes of the proposed orders.