Swiss Type Claims & Supply Infringement

The much awaited case of Otsuka Pharmaceutical Co Ltd v Generic Health Pty Ltd (No 4) was handed down on 29 June 2015. Importantly, the case interprets ‘Swiss type’ patent claims that are relevant to methods of treating diseases using drugs that, prior to the patent application, were previously known. In this case, Yates J found that ‘Swiss type claims’ were valid. The case also represents a recent trend by originator pharmaceutical companies of arguing that generic pharmaceutical companies have infringed patents by supplying drugs that can be used for infringing purposes, even though the drug also has non-infringing purposes. Interestingly, Yates J found the patent in question invalid, but stated that if it is was valid, then the generic pharmaceutical companies would have infringed the patentee’s rights by supplying it. (Posted by John Liddicoat).