Les Laboratoires Servier v Apotex Pty Ltd

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from a decision of a single judge of this Court made on 11 September 2009 (Apotex Pty Ltd v Les Laboratoires Servier (No 2) [2009] FCA 1019). The effect of that decision was to dismiss a Notice of Motion filed by the respondent below (Servier), in which Servier sought to amend Australian Patent No 2001276418 (the AC patent). In the proceedings below, the applicant there (Apotex) had applied for a declaration that the AC patent was invalid. Servier had then sued Apotex and others for infringement of the AC patent. 2 The judgment in respect of which leave to appeal is sought finally determines the form of the claims of the AC patent, as between the parties to the proceedings and all other persons. It does, in that sense, affect the substantive rights of the respondent. If the present application for leave is refused, then the proceedings below will proceed to a hearing on validity and infringement, based on a set of claims which do not take into account the claims the subject of the amendment application. 3 The parties have agreed that the appropriate course is for the application for leave to appeal and the appeal itself, should leave to appeal be granted, be listed for hearing together and as soon as possible. The reasons for this are obvious. Such an approach will save the parties both time and money. It will also minimise the risk that the Court will be required to rehear the validity and infringement claims should the appeal be successful. 4 For these reasons, I will make the orders which the parties have agreed should be made. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.