Case: Aktiebolaget H&auml;ssle v Alphapharm Pty Ltd [2002] HCA 59 ; (2002) 212 CLR 411
Outcome: applied
effect of these provisions is that the Patent can be revoked under the Act only on a ground of invalidity that would have been available under the 1952 Act. In any case where a relevant ground of invalidity under the 1952 Act is narrower than the corresponding ground under the Act, the patentee has the benefit of the narrower ground and is not to be worse off than if the 1952 Act had continued to operate: NV Philips Gloeilampenfabrieken v Mirabella International Pty Ltd [1993] FCA 404 ; (1993) 44 FCR 239 at 250 ff per Lockhart J, with whom Northrop J agreed and with whom Burchett J agreed on this point; ICI Chemicals &amp; Polymers Ltd v Lubrizol Corporation Inc (2000) 106 FCR 214 ( Lubrizol ) at [22] [24]; Aktiebolaget H&auml;ssle v Alphapharm Pty Ltd [2000] FCA 1303 ; (2000) 51 IPR 375 at [8] [10]. Professors Banwell and Davies In Minnesota v Beiersdorf at 292-295 and in Aktiebolaget H&auml;ssle v Alphapharm Pty Ltd [2002] HCA 59 ; (2002) 212 CLR 411 ( Astra ) at [57] it was held in relation to s 100(1)(e) of the 1952 Act that publications are not to be taken into account unless their content was part of common general knowledge at the priority date. Accordingly, the issue is not whether it was obvious to conduct a literature search of a particular kind with a view to acquiring information, but whether the information that would have been obtained from the search had already entered the body of common general knowledge: Minnesota v Beiersdorf at 295; Astra at [45]. No question arises in this case regarding the results of a routine literature search. Alphapharm submits: 415. ... Professor Montgomery articulates a series of opinions regarding the efficacy of citalopram vs (+) citalopram on the basis of his interpretation of reports or articles, which in turn report the results of certain clinical studies (most of which were conducted by or on behalf of Lundbeck). 416. No person has given evidence regarding the conduct of those studies, the underlying data concerning the studies has not been provided and there has been no disclosure of primary documents that might reveal (for instance) the aims, objectives or methodology of those studies. The authors of the Journal Articles relied upon have not given evidence. As submitted above, Alphapharm was able to call the pooled studies seriously into question, on the basis of limited material. 417. The Journal Articles themselves constitute reports of selected information taken from and summarized as the results from clinical studies. Further, there is no evidence as to the existence of other unpublished studies the results of which may be unhelpful to the Lundbeck arguments. Professor Montgomery does not refer to the underlying data, but relies on the results as reported in the Articles. 418. The Journal Articles themselves are at times opaque as to the studies upon which their conclusions are based ... Further, not all of the studies upon which the Montgomery expert evidence is based were published. 419. Accordingly, the basis upon which Professor Montgomery has expressed his opinions is hearsay evidence which cannot be admitted as evidence of the truth of its contents. 420. Alphapharm submits that, in the absence of proof of that factual basis, the evidence of Professor Montgomery in this regard is inadmissible.