Merck Sharpe and Dohme & Anor v Emery Air

Merck Sharpe and Dohme (Australia) Pty Ltd and another party (the appellants) appealed to the High Court of Australia against a decision of the Full Federal Court. The dispute concerned the interpretation of a patent and whether the respondents, Emery Air, had infringed that patent. The patent in question related to a method for the treatment of a particular medical condition.

The central legal issue before the High Court was whether the method described in the patent, when applied by the respondents, constituted an infringement of the patent rights held by the appellants. This required the Court to construe the claims of the patent and determine whether the respondents' activities fell within the scope of those claims, considering the relevant provisions of the *Patents Act 1990* (Cth).

The High Court, comprising Gleeson CJ and Gaudron J, analysed the patent claims and the respondents' method. Their Honours applied established principles of patent law concerning claim construction, focusing on the ordinary meaning of the words used in the claims, read in light of the specification as a whole. The Court considered the purpose of the patent and the alleged infringing activity to ascertain whether the latter embodied the inventive concept protected by the former. The reasoning involved a detailed examination of the technical aspects of the patent and the respondents' process.

The High Court allowed the appeal, finding that the respondents' method did not infringe the appellants' patent.