Federal Court of Australia

Telix Pharmaceuticals (Innovations) Pty Ltd v Purdue Research Foundation [2026] FCA 1262

ORDERS

THE COURT ORDERS THAT:

1.    The respondent pay the applicant’s costs incurred in respect of the interlocutory application filed on 24 April 2026 and amended on 17 June 2026 in the amount of $25,000 by 11 September 2026.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BURLEY J:

1    This short form judgment addresses the question of the payment of costs incurred for an interlocutory application by the respondent/cross-claimant, Purdue Research Foundation, filed on 24 April 2026 and amended on 17 June 2026.

2    In the proceedings, the applicant, Telix Pharmaceuticals (Innovations) Pty Ltd seeks orders and declarations that claims 1, 16, 19 to 26 and 33 to 37 of Australian patent No. 2008289108 (entitled “PSMA binding ligand-linker conjugates and methods for using”) are invalid and that they be revoked. By cross-claim, Purdue seeks declarations and orders that claims 26 and 33 to 36 of the patent have been infringed and restraining such infringement. All of the claims in issue are directly or indirectly dependent on claim 1.

3    By the initial interlocutory application (IA), the respondent sought leave to make amendments to the patent, including to claim 1. By subsequent amendments made to the IA on 17 June 2026 (amended IA), the respondent pressed only correcting amendments to one page of the specification and abandoned proposed amendments to the claims.

4    On 1 July 2026, Telix filed particulars of opposition, and corresponded with Purdue regarding discovery categories related to the amended IA.

5    On 15 July 2026, Purdue informed Telix that it would not proceed with the amended IA. It indicated in its correspondence that it would pay Telix’s costs of that application.

6    At a case management hearing conducted on 24 July 2026. Telix provided the Court with a Form Statement of Costs prepared in accordance with the Intellectual Property Practice Note: Standard Directions for Australian Patent Proceedings (IP-2), in which it itemised its costs and disbursements which come to a total of $44,581.60. Telix seeks an order that the Court assess those costs in a lump sum and make an order that they be paid forthwith.

7    Although the Statement of Costs refers to IP-2, standard directions were not made in accordance with that practice note. However, Telix submits that it is appropriate for the costs order sought to be made to reflect the policy and purposes of the practice note.

8    Purdue did not provide, and was not required to, file a separate Statement of Costs in response. It opposes an order that costs be payable forthwith and contends that the costs sought are excessive. In light of the late service of the Statement of Costs, Purdue was provided with an opportunity to file a written submission addressing the quantum sought.

9    In their written submissions, Purdue submits that the costs of the interlocutory application should be assessed at no more than $20,000 and provides a number of cogent reasons for that submission, including the observation that five different fee earners were involved in the majority of work categories, that over $5,000 included solicitor/client costs which are not claimable on a party-party basis and should therefore be discounted, and that the rates claimed are significantly in excess of the recoverable rates for party-party costs under item 1.1 of Schedule 3 of the Federal Court Rules 2011 (Cth).

10    They also argue that the scope of work was limited and therefore the costs associated with it should be limited. They also argue that approximately a third of the amount is claimed for “Work on Costs Statement” which overrepresents the amount of work which would be required for what is otherwise a mechanical, straightforward task of adding time entries to create the Statement of Costs.

11    The power of the Court to make orders as to costs in the context of interlocutory applications was recently surveyed in Scidera, Inc v Meat and Livestock Australia Ltd (No 3) [2025] FCA 1569 by Rofe J at [7]–[31].

12    IP-2 contemplates at [3.1] that the Court may make a lump sum costs order upon deciding an interlocutory application, to be paid within 14 days of the order being made. The purpose is to encourage parties either to resolve or narrow interlocutory disputes: IP-2 at [3.2]. The interlocutory application in the present case was resolved by the capitulation of Purdue, who elected not to pursue it. Purdue correctly accepts that it must pay the costs of the application.

13    I consider that it is appropriate to apply IP-2 to the present application, notwithstanding that the standard directions contemplated in it were not made: see IP-2 at [1.3] and Scidera at [28]. IP-2 took effect the date it was issued and applies to proceedings filed before or after its date of issuing.

14    For substantially the reasons in the submissions advanced by Purdue, in my view the costs sought should be significantly reduced. I assess them in the amount of $25,000. In the circumstances of this case I consider that it is appropriate that the costs be payable forthwith.

15    Accordingly, I will award that the Purdue pay Telix’s costs assessed in the amount of $25,000 within 14 days of this order.

Associate:

Dated:    28 August 2026