Who Has the Right to Sue? The High Court’s Warning on Standing and Role Confusion
Home › Case Studies › Case Law Library › Commercial & Business Cases › Intellectual property › H Lundbeck A/S & CNS Pharma Pty Ltd v Sandoz Pty Ltd [2022] HCA 4
Published: 18 November 2025 | Reviewed: 18 November 2025
(3-minute read)
Case Study: H Lundbeck A/S & CNS Pharma Pty Ltd v Sandoz Pty Ltd [2022] HCA 4 - Perspective 2
When Parties Assume They Have Rights They Do Not
A significant element of H Lundbeck A/S v Sandoz Pty Ltd [2022] HCA 4 concerned who actually held the right to bring infringement proceedings during the extended patent term for the antidepressant escitalopram.
Two entities initiated infringement proceedings:
Lundbeck Denmark - the patentee
Lundbeck Australia - the exclusive licensee
(A third, Pharma, raised misleading-conduct claims)
The High Court held that Lundbeck Australia did not have rights to bring infringement proceedings under s 79 of the Patents Act 1990 (Cth) for acts done during the extended term. Only the patentee held those rights.
The Court was unequivocal:
“Lundbeck Australia… had no right to bring proceedings for infringement during the extended term.”
This overturned the primary judge and affirmed the Full Court’s view that s 79 confers rights only on patentees, not exclusive licensees.
This issue was separate from the construction of the 2007 settlement clause - and it mattered because it radically changed who was entitled to damages and when those damages accrued.
Why It Still Matters - the danger of unclear roles, delegated tasks and assumptions
Businesses frequently operate with complex internal and external structures:
parent companies and subsidiaries,
overseas IP owners with local distributors,
franchisors and franchisees,
technology platforms and resellers.
It is common for parties to assume that roles are aligned or that contractual labels like “exclusive licence” automatically confer litigation rights. Lundbeck shows the danger of that assumption.
This risk is not confined to patents. Standing issues arise in:
partnership disputes,
shareholder oppression claims,
intellectual property licensing,
joint ventures,
misleading-conduct claims,
agency and distribution arrangements.
Where roles are blended or poorly documented, businesses can find their supposed rights evaporating under judicial scrutiny, often after significant cost has already been incurred.
The deeper lesson from Lundbeck is that role confusion creates legal uncertainty, and when these uncertainties intersect with high-stakes litigation, the exposure multiplies.
How to Avoid the Same Trap - structural role separation and independent governance
The closest Clean Law safeguard addressing this risk is Clear Role Separation & Independence, as documented in the Advocacy Boundaries & Independence Policy.
The High Court’s reasoning demonstrates that:
calling a party an “exclusive licensee” does not guarantee standing,
statutory rights turn on precise roles, not labels,
courts examine underlying structure, not internal expectations.
In the traditional model, one lawyer often performs:
negotiation,
settlement,
trial strategy,
cost control,
risk analysis,
commercial interpretation.
This blending of functions can unintentionally create false comfort about who has authority to act, mirroring the confusion seen in Lundbeck.
Clean Law’s model responds structurally:
1. Distinct, independent roles - not merged functions
Clean Law handles settlement strategy, timing and cost oversight.
The separately retained courtroom lawyer handles advocacy and procedural rights.
Each role is documented and independent.
2. Public-interest governance and audits
Our independence is demonstrated through:
annual Law Society trust-account audit,
ACNC-governed reporting,
no referral fees,
no shared profits.
These safeguards make role separation visible and accountable.
3. No overlapping incentives
Unlike traditional models, our structure avoids conflation of:
risk assessment
role authority
commercial expectations
litigation control
This prevents misunderstandings about who can act, when, and with what authority - the very confusion that fuelled part of the Lundbeck dispute.
Reflection
The Lundbeck decision is a reminder that rights in litigation depend on clearly articulated roles, not assumptions. Businesses often consider whether their current arrangements, internally or with external lawyers, create similar risks of uncertainty.
Two simple questions often help clients assess exposure:
Are the roles in our dispute clearly documented and independent?
Do the incentives align with the functions we actually need performed?
If the answer to either is “not sure”, structural reform, not simply clearer drafting, may offer greater protection.
Understanding who has authority to act is essential in any dispute. Clean Law’s independence safeguards make roles transparent, audited, and conflict-free.
If your matter may involve multiple entities, licences or potential standing issues, clients often begin with a private, fixed-fee mapping of who actually holds which rights. Book a confidential appointment
By Nicky Wang
Principal Solicitor
Legal Liaison Ltd (trading as Clean Law)
Prepared in accordance with public-interest governance,
annual Law Society trust-account audits, and ACNC-reported standards.
Disclaimer: This page is intended to provide general information only and is not legal advice. The contents may not reflect the most current legal developments and do not take into account your individual circumstances. You should not act or refrain from acting on the basis of this information without obtaining legal advice tailored to your situation.
