Hexal Australia Pty Ltd v Roche Therapeutics Inc

Hexal Australia Pty Ltd and Alphapharm Pty Ltd applied for an interlocutory injunction against Roche Therapeutics Inc to prevent them from enforcing patent rights relating to the drug Pegasys. The dispute arose out of a contention that the patents held by Roche were invalid and that Hexal and Alphapharm intended to manufacture and sell a generic version of the drug. The case was heard in the Federal Court of Australia.

The court was required to decide whether Roche's patent rights were valid and whether an interlocutory injunction should be granted to prevent Hexal and Alphapharm from manufacturing and selling the drug. The court also had to consider the balance of convenience and whether the public interest in access to cheaper medicines outweighed Roche's right to enforce its patent.

The court found that there was a serious question to be tried in respect of infringement and that the concerns about invalidity probably had more weight. The court noted that Hexal and Alphapharm had not yet sold any products and that any loss to Roche would be comparatively easy to quantify. The court also considered the comparatively long delay to Hexal’s and Alphapharm’s plans and the availability of an early hearing. The court concluded that the balance of convenience favoured the refusal of the interlocutory relief sought by Roche.

The notice of motion filed on 1 July 2005 was dismissed, and the application for interlocutory relief was refused. The court emphasized that all parties must move with the utmost expedition towards an early hearing. Failure to do so might justify reviewing the decision.