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Patent Litigation Victory for Milbank’s Client AstraZeneca

Friday, August 22, 2008

On Wednesday, August 20, 2008, the U.S. Court of Appeals for the Federal Circuit handed a victory to AstraZeneca AB, upholding a lower court ruling that generic drug makers Apotex Corp. and Impax Laboratories Inc. infringed patents for the heartburn medication Prilosec.

The appeals court affirmed the U.S. District Court for the Southern District of New York's May 2007 order finding that Apotex and Impax infringed U.S. Patent Numbers 4,786,505 and 4,853,230, which relate to omeprazole, the active ingredient in Prilosec.

One interesting aspect of the decision is that after ten years of litigation, AstraZeneca now has the ability to pursue damages against Apotex Corp. and Impax Laboratories' marketing partner, Teva Pharmaceutical Industries, for "at risk" sales of generic Prilosec, which was once the biggest selling drug in the world.

The Milbank team representing Astra Zeneca AB was led by partner Errol B. Taylor and included partners Frederick M. Zullow, John M. Griem, Jr., Lawrence T. Kass and associate Emily J. Kunz.

Apotex Corp. is represented by Katten Muchin Rosenmann LLP. Impax Laboratories is represented by Sutherland Asbill & Brennan LLP.

The case is In Re Omeprazole Patent Litigation, filed in the U.S. Court of Appeals for the Federal Circuit, case no. 07-1414.

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