Orange Book Blog

Merck has asked the federal district court in Delaware to vacate a judgment that Merck’s patent on its Fosamax Once Weekly drug product is invalid, alleging that Teva committed fraud in the previous litigation.  In its 2003 decision, the district court upheld Merck’s patent.  However, in a 2005 decision, the Federal Circuit reversed the district court when it found, by a 2-1 vote, that Merck’s patent was invalid as obvious.

According to Merck’s new complaint, filed last Wednesday, Teva withheld key documents in the previous litigation that would have convinced the Federal Circuit to affirm, rather than reverse, the district court.  More specifically, Merck alleges that Teva failed to produce documents that would have supported Merck’s claim that it had sufficient evidence of unexpected results to defeat Teva’s obviousness argument.

A Dow Jones article relating to the litigation can be found here.