This week in the High Court of Australia

Unfortunately other commitments have delayed this week’s post, but here goes.  There are two cases being heard this week in the High Court.

On Tuesday 28 May 2013 the Court heard argument in Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd.  In that case Hoechst AG held a patent for a compound called leflunomide.  That patent, which expired in 2004, claimed a “method for the treatment of inflammations, rheumatic complaints and multiple sclerosis by administering to the patient an effective dose” of leflunomide.  In 1994 Hoechst AG applied for a patent (expiring in 2014) in which it claimed “A method of preventing or treating a skin disorder, wherein the skin disorder is psoriasis, which comprises administering to the patient an effective dose” of lelunomide.  Apotex has marketed a generic form of leflunomide, for which it has TGA approval and copied the respondent’s patient information.  The respondents sought to restrain Apotex from marketing its generic leflunomide for psoriasis, claiming it breached the patent.  The High Court has thus been called upon to rule on whether or not a method of treatment of the human body is capable of being a patentable invention, or alternatively whether a claim for a subsequent use of a previously known product claims a patentable invention.  The hearing continues tomorrow.

On Thursday, 30 May 2013 the Court will hear argument in the appeals in Issa v The Queen and Elias v The Queen.  The Court will consider the extent of the principle in R v Liang & Li, whereby a sentencing court imposing a penalty for a State offence is required to have regard to the fact that the accused could have been charged with a different offence under State law that carried a lesser penalty.  At issue in the appeal is whether or not in sentencing a person for a State offence, the principle in R v Liang & Li requires a court to take into account that the person could have been charged with a similar offence for the same conduct under a Commonwealth law which carried a lesser maximum penalty.