Last week
I predicted that the High Court would affirm the finding of five judges of the Federal Court of Australia that AstraZenenca’s patents covering low-dosage forms of the cholesterol-lowering drug marketed as CRESTOR (having the active ingredient rosuvastatin) are invalid on grounds of obviousness.
In the much-anticipated decision in
AstraZeneca AB v Apotex Pty Ltd (et al) [2015] HCA 30, five judges of the High Court, in four distinct concurring opinions, have unanimously fulfilled that prediction. In doing so, they have successfully disappointed anybody who was hoping for some interesting developments in the law of obviousness in Australia, and gladdened the hearts of those who value certainty and stability in the law, notwithstanding that there may be opportunities for improvement.
There were two issues before the High Court. Firstly there was what I have previously called the ‘selection’ question. The law applicable to the rosuvastatin patents permits the use of a single prior art document as the basis for assessing obviousness, and has nothing to say about the process by which that document is identified, other than that it must be information that would be ‘ascertained, understood and regarded as relevant’. The High Court has confirmed that the fact that a selected document might be just one of many that would meet this requirement, and that all of the others would result in the skilled person heading off down a different path, does not expressly enter into the inquiry. As a result, the Federal Court panel was correct in finding the rosuvastatin low-dose patents invalid for obviousness.
Secondly, there was the ‘starting point’ question, which addresses whether the perspective from which the contribution of the invention should be viewed is that of the inventor, as stated in the patent specification, or some other perspective determined on the basis of evidence and/or the prior art. This was potentially the more interesting and controversial issue, because there have (arguably) been inconsistent findings on this question at the Federal Court level. The High Court dodged the issue, by finding it unnecessary to address the ‘starting point’ question in view of its finding on the first question. As a result, the decision of the Federal Court panel, that the starting point is determined objectively, and not from the subjective position of the inventor, remains undisturbed.
In an effort, perhaps, to keep things interesting, Chief Justice French provided some additional characterisation of the ‘person skilled in the relevant art’. While it is not news that this is not a real person, but rather a hypothetical construct created for the purposes of patent law, we can now add to the list of dehumanising qualities that he or she is but a ‘pale shadow of a real person’ and a ‘tool of analysis’!
Back in April I published an article about patenting perpetual motion and free energy machines. One of the points I made in that article was that prior to the passage of the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 it was actually possible to obtain a patent in Australia for such a device, even though it could not work because it would violate fundamental laws of physics. 
