What's prior disclosure of pharmaceutical compounds?

The recent decision in Albany Molecular Research Inc v Alphapharm Pty Ltd [2011] FCA 102 is a useful decision in determining how a court will deal with allegations of prior disclosure in relation to compounds where there is not sufficient information to enable the disclosed compound to be produced.

In summary, the Federal Court held that where a prior art document discloses a compound, even in the absence of an effective method to prepare it, that prior art document will anticipate a later claim to the compound.

Background

Albany Molecular Research, Inc (AMR) commenced proceedings against a number of generics, including Alphapharm, claiming that they had infringed Patent No 699799 by making, selling and otherwise dealing in various pharmaceutical products, the active ingredient in which was fexofenadine hydrochloride. Fexofenadine hydrochloride is marketed in Australia by sanofi-aventis under the trade name Telfast.