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ARTICLE · 16 MARCH 2017

Application to list on PBS does not constitute patent infringement per se

Clayton Utz
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Lodging an application for listing on the Pharmaceutical Benefits Scheme does not constitute exploitation of a patent.

AustraliaIntellectual Property
Natalie Shoolman
Natalie Shoolman
Ashley Cameron
Ashley Cameron
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The Federal Court has recently considered when an offer to supply during the term of a patent constitutes patent infringement. The Court has held that lodging an application for PBS listing is not an offer to supply and does not constitute patent infringement per se.

The Federal Court in Apotex Pty Ltd v Warner-Lambert Company LLC (No 3) [2017] FCA 94 has confirmed that lodging an application for listing on the Pharmaceutical Benefits Scheme (PBS) does not constitute exploitation of a patent and therefore does not amount to patent infringement. However, offers made during the term of a patent to supply infringing products after patent expiry do constitute exploitation of a patent and amount to patent infringement.

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