Rehearing in Lipitor Appeal is Denied: The Federal Circuit Preserves Its Prior Decision

The Court of Appeals for the Federal Circuit has denied rehearing in the U.S. patent case involving Lipitor(R). This ruling leaves unaltered the Court's August decision that Lipitor(R) will remain covered by Pfizer's basic patent in the U.S. until 2010. In one of the most economically significant patent cases of the last century, Connolly Bove Lodge & Hutz LLP served as lead counsel at both trial and on appeal and successfully sustained Pfizer's basic patent and its term extension to preserve Pfizer's exclusivity over Lipitor(R). The Federal Circuit appeal was argued by Rudolf Hutz and the trial team consisted of Rudolf Hutz, Mary Bourke, Collins Seitz, Jr., Jeffrey Bove and William McShane. This win secures Lipitor(R)'s status as the world's best selling drug.

This decision comes on the heels of a series of wins at the Federal Circuit Court of Appeals for Connolly Bove. Including this win, the Firm successfully represented four separate clients in four appeals. Equally impressive, four different Connolly Bove attorneys argued the appeals. This number of wins in such a short period is remarkable by any standards and this is the second time Connolly Bove has prevailed in a series of Federal Circuit appeals. During 2002, the Firm won six cases at the Federal Circuit including a rare en banc reversal of a prior opinion by the Court.

In another August decision, Jeffrey Bove argued for Bayer and obtained a ruling that four patents issued to Housey Pharmaceuticals, on which Housey had sued over 25 pharmaceutical companies, were procured by inequitable conduct. The decision sustained an award of attorney's fees and costs in excess of $1.9 million. At trial, Connolly Bove attorneys Mary Bourke, Rudolf Hutz and Jeffrey Bove proved that Housey had obtained the patents through the submission of fabricated data. In one of the most widely watched appeals in the same case, Connolly Bove had previously prevailed in another Federal Circuit appeal, argued by Bove, relating to an important issue of first impression regarding the scope of process patents. The inequitable conduct decision is the culmination of a five year patent battle with Housey. The Federal Circuit opinion reinforces the primary role of the District Court in a bench trial to make findings of fact and to determine the credibility of witnesses.

On June 22, in an appeal argued by Stephen Sulzer, the Federal Circuit unanimously affirmed a summary judgment of non-infringement dismissing patent infringement claims asserted by Honeywell against Toyoda Gosei North America, TG Fluid Systems USA, and A. Raymond. The Court of Appeals agreed with the ruling by the United States District Court for the Eastern District of Michigan that the patent claims were properly limited to a fuel filter, based on the patent specification's description of the invention as a fuel filter, and agreed that the claims do not cover the defendants' products.

On May 22, Connolly Bove prevailed in another Federal Circuit appeal argued by Robert McMorrow. Falkner v. Inglis, a patent interference, explored the evolving written description requirement in the context of biotechnology. The interference count concerned a viral vaccine based on a poxvirus vector. In a unanimous decision authored by Judge Gajarsa, the Court upheld the USPTO's decision awarding priority to party Inglis. The central issue in the case concerned whether Inglis' specification (and priority specifications, which were very similar) contained sufficient enablement and written description support for the interference count and for Inglis' claims. While the Inglis specification disclosed that the vaccine virus could be based on a poxvirus, the only "working" example contained in the specification related to a herpesvirus embodiment of the vaccine.

Separately, Connolly Bove has announced the expansion of its Los Angeles, California office, by adding another first chair litigation partner, Scott R. Miller, and two Of Counsel attorneys, Minda Schechter and Manuel Nelson. The Firm has also added an International Trade Commission practice and first chair litigation group to its Washington, D.C. office. Simultaneously, Connolly Bove's Delaware based Business Law Group has added Mergers & Acquisitions and Financial Institutional Regulatory components to their practice. The Firm has also announced that Zhun Lu will serve as the Director of its newly formed Asian Pacific practice, which will complement its Los Angeles Office to better serve current and future clients on the West Coast and in the Pacific Rim.

Connolly Bove Lodge & Hutz LLP is one of America's leading law firms in the intellectual property field and has repeatedly ranked among the top firms in the United States for the total number of cases filed and for the number of domestic patents obtained. The Firm has also been recognized as one of the most active patent litigation firms in the nation by IP Law & Business magazine. Protecting patents and other intellectual property in an increasingly competitive and globalized economy is at the forefront of Connolly Bove's successful practice.

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