Federal Court overturns injunction restraining supply of GSK's Children's Panadol product

By Richard Jarvis and Cara Gerace

GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 102

In September this year, the Full Federal Court of Australia, lifted an injunction restraining the supply of GlaxoSmithKline Australia Pty Ltd's (GSK's) Children's Panadol 1-5 years which incorporated a liquid dispensing apparatus.

Reckitt Benckiser Healthcare (UK) Limited (Reckitt) brought proceedings against GSK in May 2013 claiming that the liquid dispensing apparatus which accompanied its Children's Panadol 1-5 years product infringed its patent, and sought injunctive relief to restrain the supply of that product coming into the winter cold and flu season.

The key factors that led to GSK's injunction being lifted

The Full Court, comprising Justices Bennett, Jagot and Griffiths, lifted the injunction initially granted by Justice Rares in July 2013, after finding that:

GSK's case for non-infringement was stronger than Reckitt's case; and the "balance of convenience" did not favour the granting of an injunction taking into account public health safety factors and the public interest in having GSK's Children's Panadol 1-5 years available with the safer dispensing apparatus. Facts of the GSK v Reckitt Children's Panadol case

Reckitt's first injunction against GSK's Children's Panadol product

In May 2013, Reckitt commenced proceedings against GSK in the Federal Court of Australia claiming that GSK's Children's Panadol 1-5 years product which incorporated a liquid dispensing apparatus infringed its patent. Reckitt sought interlocutory injunctive relief to restrain GSK from supplying its Children's Panadol 1-5 years product.

The liquid dispensing apparatus in question comprised a bottle, bottle neck liner and flat-nosed syringe (the Original Syringe). The flat-nosed syringe inserted into and formed a seal with the neck of the bottle to draw up liquid whilst the bottle was inverted. The...