The decision in Eli Lilly and Company v Generic Health Pty Ltd [2013] FCA 1254 continues the recent trend of owners of pharmaceutical patents obtaining interlocutory injunctions to prevent entry of generic products onto the Australian market.
Eli Lilly sought to restrain Generic Health from supplying a generic version of its raloxifene based product EVISTA used in the treatment of osteoporosis. Having decided that despite conflicting expert evidence, Eli Lilly had demonstrated a prima facie case for relief, the Court went on to consider the balance of convenience.
Generic Health sought to rely on the loss of the so called first mover advantage as weighing in favour of refusing the injunction. However the Court doubted whether any such advantage would be significant, particularly where an earlier competitor was already restrained by an interlocutory injunction which would likely be lifted if the application was r
efused.
More relevant to the assessment of the balance of convenience was the effect that inclusion of Generic Health’s product on the Pharmaceutical Benefits Scheme (PBS) would have on the market including an immediate and likely irreversible price reduction for the Eli Lilly product. Also given significant weight by the Court was the willingness of the parties, especially Eli Lilly, to make themselves ready for an early final hearing.
Ultimately, the Court not only granted the interlocutory injunction but also ordered that Generic Health take steps to withdraw its PBS applications.