Tuesday, July 28, 2009

Apotex takes its last swings against Plavix

Peter Loftus at wsj in a post titled Apotex Asks US Supreme Court To Overturn Plavix Patent discusses the attempt of Apotex, through the vehicle of KSR, to attack the validity of claims of the Plavix patent through obviousness.

The CAFC decision, discussed on IPBiz, was well post-KSR, so this appeal would involve convincing the Supreme Court that the CAFC was NOT practicing KSR the right way. Don't hold your breath on this one! If, hypothetically, the Supreme Court took the case, it would open up the whole "patenting enantiomer" can of worms, a fact-intense area of the type that the Supreme Court tends to avoid (note the "facts" in the KSR case).

The criminal matters of BMS in actions with Apotex were mentioned in the Loftus article. [Previous IPBiz post:
BMS to plead guilty to making false statements to federal agency

Note how the criminal disposition was handled as to the guilty executive:

Bristol's mishandling of a proposed Plavix patent settlement with Apotex in 2006 led to the ouster of then-CEO Peter Dolan and criminal charges against the company and a former executive, not to mention other legal headaches. Bristol pleaded guilty in 2007 to lying to the government about the terms of the proposed settlement and paid a $1 million fine. The former executive, Andrew Bodnar, pleaded guilty in April and was recently given the unusual sentence of writing a book about his experience.

Query: was the Bessen/Meurer book a sentence on the rest of the world in patent law, and, if so, was it cruel and unusual?


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