Boehringer Ingelheim Animal Health USA Inc v Intervet International BV (No 2)

[2020] FCA 1433

This case involved a question of costs of two interlocutory applications filed by Intervet by which it sought to amend its patent application. In relation to the first application to amend, an order was made by consent and that order did not reserve or otherwise refer to the costs of the interlocutory application. Boehringer initially opposed the second interlocutory application to amend based on discretionary grounds, but ultimately consented. The consent order included an order that costs be reserved.

Moshinsky J ordered that each party was to bear their own costs of the interlocutory applications. Intervet had sought something in the nature of an indulgence in which case the patentee may be ordered to pay the costs of the amendment application, regardless of the outcome of the case. However, Boehringer did not seek a costs order in its favour, but only an order for each party to bear their own costs. His Honour considered such an order appropriate, particularly where there was no adjudication on the merits of either application. This was so despite Boehringer initially opposing the second amendment request, which may have caused Intervet to incur some costs. His Honour thought that Boehringer had a proper interest in considering the proposed amendments.

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