Intellectual Property: Novozymes A/S v Danisco A/S [2013] FCAFC 6

The Federal Court has handed down its decision in the case of Novozymes A/S v Danisco A/S [2013] FCAFC 6

The case involves a long-running patent dispute between Danisco and Novozymes involving the use of enzymes in baking bread. Jessup J provides a concise summary in his judgment:

"This is an appeal by Novozymes A/S and Novozymes Australia Pty Ltd from a judgment given by a single Judge of the court on 20 April 2011, for which her Honour had published reasons on 29 March 2011, in favour of the respondents, the then applicants, Danisco A/S and Danisco Australia Pty Ltd.  The proceeding below concerned Australian Patent No 752215, entitled “Foodstuff”, the priority date of which was 21 July 1998.  With respect to Claims 7 and 14 in the patent, the primary Judge found for the respondents, declared that the appellants had infringed those claims in certain respects, and made corresponding injunctions.  The appellants’ cross-claims that the patent was relevantly invalid for want of clarity, for want of novelty, for want of an inventive step and as not amounting to a manner of manufacture were dismissed."

The respondents alleged that the importation, promotion and supply by the appellants of a product called “Lipopan Xtra” amounted to an infringement of Claims 7 and 14 of the patent in suit.

On appeal to the Federal Court, the appellants challenged the primary Judge’s conclusions on clarity, novelty, and manner of manufacture.

The Court ordered that:

* The declaration made in paragraph 1, the orders made in paragraphs 2 and 6, and the certificate given in paragraph 14, of the orders made by the primary Judge on 20 April 2011 be set aside.

* So far as it relates to Claims 1 and 7, Australian Patent No 752215 be revoked

* The parties file and serve written submissions with respect to the following issues:

(a)        what, if any, further orders should be made with respect to the orders made by the primary Judge other than those referred to in Order 1 above;

(b)        whether any, and if so which, of the other claims in the said patent should be revoked in the light of the revocation of Claims 1 and 7 and of the reasons given by the Full Court this day; and

(c)        what, if any, orders should be made as to costs, in relation both to the proceeding before the primary Judge and to the appeal.

* Those submissions be filed and served.