Norbrook Laboratories Limited v Bayer New Zealand Limited

The case of Norbrook Laboratories Limited v Bayer New Zealand Limited involved a dispute over patent opposition. The central issue was whether Bayer New Zealand Limited’s patent application, which claimed a specific formulation for preventing mastitis in animals, met the requirements of novelty and inventive step, and if the proposed amendments to the patent specification were allowable under the relevant legislation. The matter was heard by Dr A. Lim, a delegate of the Commissioner of Patents.

The primary legal issues addressed by the court included the identification of the person skilled in the art and the evaluation of whether the proposed amendments to the patent specification maintained a fair basis. Norbrook Laboratories Limited argued that Bayer's process for obtaining expert evidence was flawed, and that the evidence provided by Bayer's expert, Dr Bunt, was not impartial. Bayer New Zealand Limited, on the other hand, argued that the amendments did not introduce new matter and were permissible under the Patents Act.

The court determined that the evaluation of the evidence to ascertain whether it aligns with the perspective of the person skilled in the art is within the scope of a delegate of the Commissioner. The court found that the proposed amendments did not result in the specification claiming matter not disclosed in the specification as filed and, therefore, did not introduce a lack of fair basis. Consequently, the amendments were allowable under the relevant sections of the Patents Act.

The court concluded that the opposition was unsuccessful, and the amendments were allowable. The costs of the proceedings were awarded to the opponent, Bayer New Zealand Limited.