Earlier today, Justice Jessup of the Federal Court handed down judgment in AMRI v Alphapharm upholding Alphapharm’s challenge to AMRI’s patent which claimed substantially pure fexofenadine, a drug used to treat allergic reactions, on the ground that it lacked novelty, and for having been granted on the basis of a material false representation to the Patent Office. Mallesons acted for Alphapharm.
Importantly, applying the Full Court decisions in Apotex and Lundbeck, Justice Jessup found that disclosure of the precise thing (here, the exact compound) in the prior art is “sufficient, of itself, to constitute anticipation”. The decision confirms that it is not necessary to prove that the prior art patent enables that thing to be produced.
Keep an eye out for more to come.
