Commonwealth v Sanofi (formerly Sanofi-Aventis)

The Commonwealth of Australia filed a claim against Sanofi, a pharmaceutical company, for compensation related to the revocation of a patent. The claim stems from an earlier proceeding where Apotex, another pharmaceutical company, sought to revoke a patent held by Sanofi. Following a series of legal proceedings, the patent was ultimately revoked. The Commonwealth now seeks compensation from Sanofi for damages incurred due to the revocation, based on undertakings given by Sanofi regarding damages in the initial proceedings.

The legal issues at hand revolve around the enforceability of a clause in a settlement agreement that restricts certain parties from assisting or encouraging another party by waiving claims for legal professional privilege or releasing third parties from obligations of confidence. Specifically, the court needed to determine whether this clause interferes with the administration of justice, making it unenforceable.

The court found that the clause was partly unenforceable. While it does not prevent Apotex from granting the Commonwealth access to its witnesses, it would, if enforceable, prevent Apotex from voluntarily assisting or encouraging the Commonwealth in specific ways, such as releasing third parties from obligations of confidence or waiving legal professional privilege. The court concluded that such restrictions would interfere with the administration of justice, particularly the right of the Commonwealth to rely on evidence from Apotex witnesses, while still allowing for the protection of confidential information in the pre-trial phase.

The court made a declaration that the clause is partly unenforceable, specifying that while certain actions are restricted, others are permissible. The reasons for judgment are to be kept confidential except for the parties and their legal representatives until a specified date. Any request for an extension or variation of this order must be filed by a certain deadline.