Case: EI Du Pont De Nemours &amp; Co (Witsiepe's) Application [1982] FSR 303 
Outcome: cited
I am satisfied that there is a substantial issue to be tried as to the validity of the patent on the ground that the claims of the patent are not novel over the first Canadian patent. I do not agree that that issue can be simply disposed of by reference to the decision of the House of Lords in EI Du Pont De Nemours &amp; Co (Witsiepe's) Application [1982] FSR 303, at least not without much closer examination of the issue than is appropriate on an interlocutory application. At the very least, the statement in the Canadian specification "the invention also concerns each of the enantiomers and their mixture", the formula for the compound example 1, and the statements in claim 1 "as well as the 2 enantiomers or their mixture of these compounds of formula (I)" and "and, if desired, its enantiomers are separated and/or it is salified by mineral or organic acid action", give substance to the claim of invalidity by GenRx. It is not necessary to consider other points of invalidity that will arise on the hearing. 9 However, in my opinion, the combination of the longstanding existence and exploitation of the patent in suit together with the failure of GenRx to bring revocation proceedings in a timely fashion are factors pointing to the appropriateness of the grant of an injunction. The survival of similar patents from challenge in proceedings in both Canada and the United States points in the same direction, although not too much can be made of this because it is at least arguable that the approach of the courts in those places differs from the approach of the courts in Australia and there are differences in the framing of the patent, particularly in the United States. 10 The chronology is as follows: &#8226; 7 July 1983: Sanofi's application for the original patent duly granted in Australia on that application; &#8226; 7 November 1985: Publication of the corresponding first Canadian patent in Australia; &#8226; 4 February 1988: Patent in suit filed in Australia; &#8226; 7 June 1990: Patent in suit granted; &#8226; 1 January 1997: Partnership agreement between a Sanofi entity and a Bristol-Myers Squibb entity for the exploitation of the patent whereby clopidogrel is marketed in Australia under two brands Pravix marketed by the Sanofi entity and Iscover marketed by the Bristol-Myers Squibb entity; &#8226; 21 March 2002: US proceedings commenced; &#8226; 10 March 2003: Canadian notice of allegation; &#8226; 7 July 2003: The expiry of first Australian patent; &#8226; November 2003: Incorporation of GenRx. Prior to November 2003 GenRx business an unincorporated unit of Faulding and then Mayne; &#8226; 20 January 2004: Proceedings commenced in the Korean Intellectual Property Tribunal; &#8226; 28 April 2004: Canadian proceedings commenced; &#8226; 1 July 2004: GenRx acquired by Apotex Australia Pty Ltd which in turn is a wholly owned subsidiary of Apotex Inc of Canada; &#8226; 27 June 2006: GenRx submits bioequivalents and bioavailability data for its clopidogrel 75 mg (as hydrogen sulphate) tablets to the Secretary, Commonwealth Department of Health and Ageing; &#8226; 30 June 2006: Date of expiration of data exclusivity period; &#8226; 16 August 2007: Application for revocation filed by GenRx; &#8226; 17 August 2007: GenRx obtained registration of clopidogrel 75 mg tablets; &#8226; 17 August 2007: GenRx advised Sanofi of filing of application for revocation. &#8226; 4 February 2013: Expiry of patent in suit.