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Merck Loses Bid For En Banc Rehearing In Fosamax Patent Case

Law360 (April 21, 2005, 12:00 AM EDT) -- The U.S. Court of Appeals for the Federal Circuit has denied Merck’s petition for an en-banc rehearing of a panel’s decision that invalidated one of the patents for its best-selling osteoporosis treatment Fosamax.

The decision sends the case back to the U.S. District Court for the District of Delaware, where it is scheduled for trial later this month.

Two Federal Circuit judges dissented from the decision, arguing that the panel decision erroneously concluded that commercial success was not probative to obviousness in this case.

In January,...
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