On 16 March 2017, The Federal Court of Australia has handed
down its first detailed damages decision in a long time in a patent
infringement claim against a generic pharmaceutical company. In doing so, it
sets a new benchmark for damages claims by innovator companies whose products
have been illegally copied. In Bayer Pharma Aktiengesellschaft v Generic
Health Pty Ltd [2017] FCA 250, Bayer was awarded damages of over $25m
plus interest, assessed on Bayer’s pre-tax losses.
Bayer holds a patent which protects an oral contraceptive
which it markets as “Yasmin”. In 2012 Generic Health entered the market with a
competing oral contraceptive product known as “Isabelle”. Subsequently, Bayer
also marketed its own generic product under the name “Petibelle”. Justice Jagot
had previously found that Bayer’s patent was infringed as a result of the sale
of “Isabelle”. A factual twist in the case was that Bayer sought to amend some
of the original claims of the patent after Isabelle entered the market. Patent
infringement proceedings were already on foot. The proposed amendments were
tailored to focus more directly on the features of the “Isabelle” product,
specifically as to dose, dosage form and testing for solubility. These
amendments were approved in late 2012 under section 105 of the Patents Act
1990.
Bayer elected to seek damages for patent infringement,
rather than an account of profits. In support of its claim, it argued that
every sale of Isabelle, and of its own generic Petibelle, was in reality a lost
sale for Yasmin.
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