Bristol-Myers Squibb Co v Apotex Pty Ltd (No 5)

In the Federal Court, Bristol-Myers Squibb Co (BMS) brought proceedings against Apotex Pty Ltd (Apotex) concerning alleged patent infringement under the Patents Act 1990 (Cth). The central dispute revolved around the interpretation and scope of certain rights granted to BMS under a licensing agreement, and whether Apotex's activities constituted an infringement of those rights. The court was tasked with determining the specific nature of the rights conferred by the agreement, and whether Apotex's conduct fell within the scope of those rights, thereby constituting infringement.

The primary legal issue before the court was the interpretation of the licensing agreement between BMS and Apotex, specifically whether the agreement conferred exclusive rights or merely sole rights on BMS. The court also needed to assess the relevance and admissibility of certain pieces of evidence presented by both parties, including affidavits and recorded conversations. Additionally, the court had to consider the appropriateness of injunctive relief and declaratory relief in relation to the alleged infringement.

The court ruled that, while it was not necessary to definitively decide whether the agreement conferred exclusive or sole rights on BMS, it was inclined to interpret the agreement as granting exclusive rights. The court found that the language of the agreement did not indicate an intention to limit the rights to sole rights only. Regarding the evidence, the court admitted certain parts of the affidavits and recorded conversations, subject to relevance, and decided that they should be admitted unconditionally. The court indicated its provisional view that injunctive relief was appropriate, but declaratory relief regarding infringement might not be necessary. The court also noted the need for further submissions on specific aspects of the relief sought by BMS, particularly regarding the withdrawal of Apotex's application for pharmaceutical benefits scheme listing.

The court ordered the parties to prepare draft orders reflecting the reasons provided and indicated that further written submissions should be submitted if the parties could not agree on the orders. The court also allowed the parties' legal representatives a short period to review the reasons for any potential confidentiality claims before publication.