Ancare New Zealand Ltd v. Fort Dodge New Zealand & Anor, Court of Appeal - Privy Council, February 06, 2002, [2002] UKPC 8

Resolution Date:February 06, 2002
Issuing Organization:Privy Council
Actores:Ancare New Zealand Ltd v. Fort Dodge New Zealand & Anor
 
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[2002] UKPC 8

Ancare New Zealand Ltd v. Fort Dodge New Zealand & Anor (New Zealand) [2002] UKPC 8 (6 February 2002)

Privy Council Appeal No. 32 of 2001

Ancare New Zealand Limited Appellant

v.

(1) Fort Dodge New Zealand Limited and

(2) Nufarm Limited Respondents

FROM

THE COURT OF APPEAL OF NEW ZEALAND

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REASONS FOR REPORT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL, OF THE

6th February 2002, Delivered the 28th February 2002

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Present at the hearing:-

Lord Steyn

Lord Hoffmann

Lord Millett

Lord Rodger of Earlsferry

Sir Christopher Slade

[Delivered by Lord Hoffmann]

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This is an appeal against an order of the Court of Appeal (Gault, Henry and Thomas JJ) [2000] 3 NZLR 299 affirming the decision of Morris J. to revoke the appellants' patent (NZ No 237086) on the ground of obviousness. At the conclusion of the submissions of counsel for the appellants, their Lordships announced that they would humbly advise Her Majesty that the appeal should be dismissed with costs for reasons to be given later. These now follow.

As the history is fully stated in the admirably clear judgments of the judge and the Court of Appeal and the only point argued before the Board lay within a very narrow compass, it is unnecessary for their Lordships to give more than a concise account of the relevant facts.

Sheep and other animals are susceptible to various parasitic intestinal worms (helminths) which include roundworms (nematodes) and tapeworms (cestodes). The patent in suit is for a liquid anthelmintic composition suitable for administration to farm animals which contains praziquantel (a compound active against tape worms) and one or more other compounds, such as levamisole or benzimidazole, which are active against roundworms.

The judge found that sheep develop a natural immunity to tapeworms after three or four months but not to roundworms, which can attack mature sheep. The received opinion among New Zealand parasitologists at the priority date (12 February 1991) was that round worms were undoubtedly deleterious to the health of the animals but that tape worms, even in young lambs, were not. The latter view was based in particular upon the research of Dr D C Elliott, whose article Tapeworm (Moniezia expansa) and its effect on sheep production: The evidence reviewed (1986) 34 NZ Veterinary Journal 61 concluded:

``Since the available evidence indicates that M. expansa infections in sheep are...

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