Merck & Co. announced it intends to file an appeal with the U.S. Supreme Court asking to overturn the ruling that the patent on its blockbuster osteoporosis drug Fosamax will expire a decade earlier than expected.

The U.S. Court of Appeals for the Federal Circuit rejected a Merck & Co. request to reconsider a decision that the patent on its blockbuster Fosamax osteoporosis drug would expire by February 2008, a decade earlier than expected. Fosamax is Merck’s second-best-selling drug with sales of about $3.2 billion worldwide last year.

Israeli-based generic drug maker Teva Pharmaceutical Industries Ltd. challenged the patent on the once-weekly version of Fosamax. A Delaware district court upheld the Merck patent in 2003 but in January 2005, the Federal Circuit overturned the decision and said the Fosamax patent would expire by February 2008.

Dennis Crouch has a nice summary on his Patently Obvious blog here.

Merck, with the amicus support of Pharmaceutical Research and Manufacturers of America (PhRMA), had filed a petition for rehearing en banc but the CAFC denied the request, thus maintaining the panel decision. The denial is here.

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