Merck KGaA v Sicor Inc

Merck KGaA (Merck) sought an interlocutory injunction against Sicor Inc (Sicor) to restrain the importation and sale of a generic version of Merck's drug, Losec (omeprazole). The dispute concerned allegations of patent infringement and misleading and deceptive conduct. The matter came before Ian Thompson in the Federal Court of Australia.

The primary legal issues before the Court were whether Merck had established a strong prima facie case of patent infringement and whether the balance of convenience favoured granting an interlocutory injunction. Specifically, the Court had to consider the scope of Merck's patent claims and whether Sicor's product fell within that scope, as well as the potential harm to both parties if an injunction was granted or refused.

In determining the application, the Court applied the principles governing interlocutory injunctions, including the need for a strong prima facie case or a serious question to be tried, and the balance of convenience. The Court considered the evidence presented by both parties regarding the technical aspects of the patents and the potential market impact of the generic product. The assessment of the balance of convenience involved weighing the potential loss of market share and goodwill for Merck against the potential financial losses and market entry difficulties for Sicor.

The Court ultimately refused to grant the interlocutory injunction sought by Merck.