Recent Cases

Commonwealth of Australia v Sanofi (formerly Sanofi-Aventis) [2023] FCAFC 97 (26 June 2023) (Besanko, Perram and Yates JJ)


PATENTS – where listing of generic drug on Pharmaceutical Benefits Scheme (‘PBS’) reduces listing price and Commonwealth subsidy of non-generic form of drug – where Respondent held patent for clopidogrel – where interlocutory injunction obtained restraining generic supplier from entering market with generic clopidogrel – where generic supplier undertook not to seek PBS listing – where Respondent undertook to compensate persons adversely affected by injunction – where Respondent’s patent subsequently found invalid – where Commonwealth seeks recovery of additional subsidies provided to Respondent due to non-listing of generic clopidogrel – where Respondent’s patent subsequently found invalid – whether generic supplier would have sought PBS listing if injunction not granted – whether trial judge overlooked material evidence – whether trial judge incorrectly drew Jones v Dunkel inference against Commonwealth – whether delay in delivering judgment more readily establishes error in trial judge’s reasons concerning credit of witness and overlooked evidence – whether Commonwealth’s claimed loss flows directly from injunction