The most significant aspect of the recent Full Federal Court decision in Ranbaxy Australia Pty Ltd v Warner-Lambert Company LLC [2008] FCAFC 82 is the discussion of false suggestion and in particular, representations made in both the specification itself and during prosecution. In this case, the patentee was found to have made representations that the activity of a particular enantiomer compared to the racemate was “surprising and unexpected” and included data in the patent suggesting a tenfold increase in activity to support that representation. It was held that based on all the data available to the patentee, the increase in activity was only twofold.
In paragraph 99 the court states:
“While an applicant for a patent is not under an obligation to include all available data, where specific material is included, that material, if unqualified, should be representative of the available data.”
