In 2013 and 2014, the Federal Court of Australia took the unprecedented step of sitting 5 Judges (instead of 3) to hear the Appeals in two separate patent cases: D’Arcy v Myriad Genetics Inc. [2014] FCAFC 115 and AstraZeneca AB v Apotex Pty Ltd (2014) 312 ALR 1 (the rosuvastatin case).

Given both of these cases dealt with big issues: the patentability of gene sequences (Myriad) and the relevant starting point for the purposes of assessing inventive step (AstraZeneca), the gravitas of 5 judges considering these issues seemed appropriate.  Accordingly, once these decisions were handed down by the Federal Court, Australian patent practitioners were confident that they had received the final considered judicial ruling on these issues.

However, as we reported last month, special leave to appeal to the High Court from the decision of the 5 judges in the Federal Court was granted in respect of the Myriad case (see our article of 13 February 2015)  and that is set down to be heard before the High Court in June.

So, we should not be surprised then to note that special leave to appeal to the High Court has also been granted to AstraZeneca in the rosuvastatin case and that is set down to be heard by the High Court on 13 and 14 May.

The High Court of Australia has been very active in hearing patent cases the last few years ((we have commented previously on the High Court decisions regarding patentability of methods of medical treatment (see our article of 12 December 2013) and extensions of time as they apply to patent term extensions (see our article of 6 November 2014)). Clearly, the High Court judges want to provide input on these two latest critical points of law and so they will deliver the definitive decisions.

Considering the recent interest of the High Court in hearing patent matters, perhaps the Federal Court will not think it necessary in future to sit 5 judges on Appeal as that seems to be viewed as an open invitation by the High Court to then grant special leave to appeal and deliver their own views on the issues in contention.