Enabling Disclosure No Longer Required To Anticipate A Patent Claim

A recent decision of the Australian Federal Court has cast doubt on the widely-accepted notion that a "paper anticipation" is insufficient to invalidate a patent claim.

In Albany Molecular Research Inc v Alphapharm Pty Ltd [2011] FCA 120, Albany sued Alphapharm (amongst other generics manufacturers) for infringement of Australian Patent No. 699799. This patent claimed fexofenadine hydrochloride in substantially pure form – and also pharmaceutical compositions and methods of treating allergic conditions using such compounds. Alphapharm was allegedly selling antihistamine products comprising the claimed compounds. In response, Alphapharm counter-claimed for revocation of AU 699799, on grounds including novelty and obviousness.