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ARTICLE · 25 AUGUST 2014

Generics win the battle for CRESTOR, but lose the war over inventive step

Corrs Chambers Westgarth
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This case places innovators at a significant advantage over generic companies in respect of follow-on inventions.

AustraliaIntellectual Property
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While the Full Court's decision represents a loss for AstraZeneca, it places innovators at a significant advantage over generic companies in respect of follow-on inventions (such as formulations and dosage regimes). Where an innovator is familiar with a particular compound the innovator will effectively have a "head-start" over other companies.

The Full Court's finding that the generics would have contravened the 'infringement by supply' provisions in s117 coupled with the Court's comments that it may not have been appropriate to grant an injunction raises further uncertainty about the operation of those provisions.

An enlarged Full Federal Court (Besanko, Jessup, Foster, Nicholas and Yates JJ) in AstraZeneca AB v Apotex Pty Ltd [2014] FCAFC 99 has upheld a decision by Justice Jagot finding that two AstraZeneca patents protecting the blockbuster product CRESTOR (rosuvastatin) were invalid. The patents where challenged by three generic pharmaceutical companies:

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