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ARTICLE · 22 MAY 2018

A clear mistake in a claim term cannot be corrected through claim construction

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Article discusses effects of the decision in the recent FFC case regarding an anticipated infringement of a patent.

AustraliaIntellectual Property
Jennifer Enmon
Jennifer Enmon
Kieran Williams
Kieran Williams
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In GlaxoSmithKline Consumer Healthcare Investments (Ireland) (No 2) Limited v Generic Partners Pty Limited [2018] FCAFC 71, the Full Federal Court has found that terms used in claims cannot be interpreted beyond their plain meaning. Such a decision emphasises that great care is required when drafting claims that contain words or phrases that have a well-established meaning in the art.

The primary decision

GlaxoSmithKline Consumer Healthcare Investments (Ireland) (No. 2) Limited (GSK) commenced a proceeding against Apotex Pty Ltd (Apotex) and a separate proceeding against Generic Partners Pty Ltd for anticipated infringement of the claims of Australian Patent No. 2001260212 (the 212 Patent). Apotex and Generic Partners brought cross-claims against GSK seeking to revoke claims 1 to 6, 8 to 11, 13 and 14 of the 212 Patent.

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