28 February 2011
Further to our earlier post in relation to the Federal Court’s decision to revoke a patent claiming “substantially pure” fexofenadine, a compound which was disclosed in prior Australian and US patents, Justice Jessup’s decision provides useful clarification in relation to the test for novelty.
The decision confirms that disclosure of a compound in the prior art will anticipate a later patent claiming the same compound. The only exception to this is where there is a “missing integer” or there is a question of whether the prior art “inevitably” produces the claimed compound.
Happily, Mallesons acted for Alphapharm.
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