FEDERAL COURT OF AUSTRALIA
InterPharma Pty Ltd v Hospira, Inc [2017] FCA 1075
File number: VID 885 of 2017 Judge: KENNY J Date of judgment: 11 September 2017 Catchwords: PRACTICE AND PROCEDURE – Application for interim interlocutory injunction – relief granted Legislation: Patents Act 1990 (Cth) Cases cited: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57
Otsuka Pharmaceutical Co Ltd v Generic Health Pty Ltd (No 4) [2015] FCA 634; 113 IPR 191
Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238
Date of hearing: 7 September 2017 Registry: Victoria Division: General Division National Practice Area: Intellectual Property Sub-area: Patents and associated Statutes Category: Catchwords Number of paragraphs: 42 Counsel for the Cross-Claimants: Mr T Cordiner QC Solicitor for the Cross-Claimants: Minter Ellison Counsel for the Cross-Respondent: Ms H Rofe QC Solicitor for the Cross-Respondent: Stephens Lawyers & Consultants ORDERS
VID 885 of 2017 BETWEEN: INTERPHARMA PTY LTD (ACN 099 877 899)
Applicant
AND: HOSPIRA, INC
First Respondent
ORION CORPORATION
Second Respondent
AND BETWEEN: HOSPIRA, INC (and another named in the Schedule)
First Cross-Claimant
AND: INTERPHARMA PTY LTD (ACN 099 877 899)
Cross-Respondent
JUDGE:
KENNY J
DATE OF ORDER:
11 SEPTEMBER 2017
PENAL NOTICE
TO: INTERPHARMA PTY LTD (ACN 099 877 899)
IF YOU (being the person bound by this order):
(A)Refuse or neglect to do any act within the time specified in this order for the doing of the act; or
(B) Disobey the Order by doing an act which the order requires you not to do,
You will be liable to imprisonment, sequestration of property or other punishment.
Any other person who knows of this order and does anything which helps or permits you to breach the terms of this order may be similarly punished.
UPON the cross-claimants jointly and severally undertaking to the Court by their counsel:
a.to submit to such order, if any, as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not that person is a party to the proceedings, affected by the operation of the order, or undertaking or any continuation, with or without variation of the order or undertaking; and
b.to pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking;
THE COURT ORDERS THAT:
1.Until the hearing and determination of the application for interlocutory relief set out in the Notice of cross-claim dated 18 August 2017, fixed for hearing on 23 November 2017, the cross-respondent, by itself, its directors, officers, servants, agents or howsoever otherwise, be restrained from engaging or threatening to engage in the following acts within the patent area (as that term is defined in the Patents Act 1990 (Cth)) without the licence or authority of the cross‑claimants:
(a)making, marketing, selling, supplying or otherwise disposing of any medicament for use in intensive care unit sedation containing dexmedetomidine or a pharmaceutically acceptable…
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- Case
- [2017] FCA 1075
- Decision Date
CaseChat Overview and Summary
The Court found that the applicant had made out a prima facie case that it was entitled to an interlocutory injunction. The Court noted that the applicant had established a serious question to be tried and that the balance of convenience lay in favour of granting the injunction. The Court also noted that there was a real likelihood of irreparable harm to the applicant if the injunction was not granted. Accordingly, the Court granted the injunction, restraining the respondent from engaging in certain activities within the patent area without the authorisation of the applicant. The Court further ordered that the respondent recall, purchase back, or take all other necessary steps to immediately recover, all stock of dexmedetomidine that had been supplied, sold, delivered or transferred to its Australian distributor.
The Court ordered that the respondent provide to the applicant an affidavit sworn by an authorised officer of the respondent that identified all steps taken to comply with the order to recall the stock. The Court also ordered that the respondent pay the applicant's costs of the application for interim injunction, as agreed or taxed, unless a party notified the Court in writing by a specified time that it opposed this order as to costs. The Court noted that the parties had liberty to apply to the Docket Judge.
Orders
Orders of the court
1. Until the hearing and determination of the application for interlocutory relief set out in the Notice of cross-claim dated 18 August 2017, fixed for hearing on 23 November 2017, the cross-respondent, by itself, its directors, officers, servants, agents or howsoever otherwise, be restrained from engaging or threatening to engage in the following acts within the patent area (as that term is defined in the Patents Act 1990 (Cth)) without the licence or authority of the cross‑claimants:
(a) making, marketing, selling, supplying or otherwise disposing of any medicament for use in intensive care unit sedation containing dexmedetomidine or a pharmaceutically acceptable salt thereof (Generic Dexmedetomidine Product);
(b) offering to make, sell, supply or otherwise dispose of any Generic Dexmedetomidine Product;
(c) using or importing any Generic Dexmedetomidine Product;
(d) authorising, inducing, procuring or joining in a common design with any other person to do any of the acts referred to in sub-paragraphs (a) to (c) above.
2. Within 3 business days of the making of these orders, the cross-respondent recall, purchase back, or take all other necessary steps to immediately recover, all stock of dexmedetomidine that has been supplied, sold, delivered or transferred to its Australian distributor pursuant to the Tax Invoice dated 31 August 2017 (being Confidential Exhibit DG-9 to the Affidavit of David Gray made 1 September 2017 and marked "Exhibit CR-6") (the Stock).
3. Within 4 business days of the making of these orders, the cross-respondent provide to the cross-claimants an affidavit sworn by an authorised officer of the cross-respondent that identifies all steps taken to comply with Order 2 above.
4. The parties have liberty to apply to the Docket Judge.
5. Unless a party notifies the Court in writing by 4:00 pm on 13 September 2017 that it opposes this order as to costs, the cross-respondent pay the cross-claimants’ costs of the application for interim injunction, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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