24 February 2017 - The Federal Court has recently issued a decision that highlights the importance of including Swiss-style claims in Australian pharmaceutical patents.

As reported previously, the Federal Court (Nicholas J) confirmed in Apotex Pty Ltd v Warner-Lambert Company LLC (No 3) [2017] FCA 94 that offers made during the term of a patent to supply infringing products after the patent has expired will infringe the patent. However, the Court also found an application lodged during the term of a patent to list an infringing product on the Pharmaceutical Benefits Scheme (PBS) will not infringe the patent if the date of listing occurs after the expiry date of the patent as it “would fall short of offering to sell or otherwise dispose of the products”.

An interesting aspect of the Court’s decision relates to the types of second medical use claims that are infringed by an offer made during the term of a patent to supply an infringing product after the term of the patent has expired.

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