The perils of seeking to rely on experiments as expert evidence

Sanofi v Amgen Inc [2023] FCA 264

In this case, though the court observed that experimental evidence can be expensive and time consuming, with the potential to create a "trial within a trial", it granted leave for presentation of experiments as expert evidence, provided the evidence was presented by affidavit in admissible form and complied with relevant procedural rules concerning expert evidence.

Background

This was an interlocutory application filed by Sanofi in an appeal it brought pursuant to s 60(4) of the Patents Act 1990 (Cth) from a decision of a delegate of the Commissioner of Patents directing that five standard patent applications filed by the respondent, Amgen, proceed to grant.