Monday, December 2, 2013

Judgments this week in the High Court of Australia

This week the High Court of Australia will deliver judgment in three cases.
On Wednesday, 4 December 2013 the High Court will deliver two judgments.  The first is 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 second judgment to be delivered on Wednesday is Willmott Growers Group Inc v Willmott Forests Ltd (Receivers and Managers Appointed) (In Liquidation).  In this case the Court will consider the long-standing power of a liquidator to disclaim onerous property.  The liquidators of the respondent company seek to disclaim leases issued by it in favour of members of various forestry investment schemes.  This is to enable land owned by the respondent company (its only significant asset) to be sold, which commercially can only occur if the land is unencumbered by the leases.  The appellant growers wish to continue to conduct the forestry investment schemes on the land, having already invested between 18 and 23 years in the schemes.

On Thursday, 5 December 2013 the High Court will deliver judgment in Kline v Official Secretary to the Governor General.  Kline had twice nominated a person for appointment to the Order of Australia.  Those nominations had been unsuccessful.  Kline made an application under the Freedom of Information Act 1982 for access to documents relating to those nominations (including documents of a more general nature relating to such nominations, such as working manuals and policy guidelines).  At issue in the appeal is whether or not the documents sought related to “matters of an administrative nature” (in which case the FOI Act required access to be granted) or whether they related to the exercise of a substantive power and function of the Governor-General (ie the administration of the Order of Australia) in which case they were exempt from production.

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