- The Washington Times - Tuesday, January 15, 2002

The Supreme Court yesterday blocked Eli Lilly and Co.’s effort to retain patent rights for Prozac though 2003, assuring lower prices for the widely prescribed drug.
Termination of Lilly’s 1986 patent on fluoxetine, marketed as Prozac, was sought by Barr Laboratories, which began marketing its generic version of the leading anti-depressant medicine on Aug. 2.
Prozac also is prescribed for anxiety, obsessive-compulsive disorder and bulimia.
Lilly says 40 million patients have received its Prozac products since 1986. But Prozac sales in the third quarter of 2001 were down one-third from the year before to $449 million.
Barr began selling generic Prozac six days after U.S. District Judge Sarah Barker rejected Lilly’s patent-infringement claims. The Pomona, N.Y., company sold $175 million worth in the first two months and said nearly 80 percent of all Prozac prescriptions were now filled with generic versions.
“We are pleased but not at all surprised,” said Barr Chairman and Chief Executive Officer Bruce L. Downey.
Lilly’s yearly Prozac sales, which hit a high of $2.8 billion in 1998, could fall to $250 million a year, stock analyst Robert Hazlett predicted. “Prozac is essentially gone” as a factor in Lilly’s financial future, Mr. Hazlett told Bloomberg News.
Yesterday’s high court refusal to hear Lilly’s appeal, issued without comment, left in place a decision by the U.S. Court of Appeals for the Federal Circuit.
That D.C.-based court said the Indianapolis firm engaged in “double patenting” of Prozac to extend exclusive rights until 2003.
Barr and Geneva Pharmaceuticals Inc., which also makes generic Prozac, argued that Eli Lilly staggered the timing of patents in 1974 and 1986 to extend its medical monopoly beyond the usual 17 years.
The appeals court agreed, ruling that the request to patent the drug for a second use was a device to prolong exclusive marketing rights.
Lilly’s attorneys told the Supreme Court that rationale was illogical because of the way Prozac was developed. The discovery that Prozac’s active ingredient inhibits serotonin uptake in the brain was cited in its 1974 patent application but not included in a drug patent until 1986.
The appeals court said the original patent rendered the serotonin-blocking patent invalid because it was obvious.
Lilly’s attorneys told the Supreme Court, “This question, whether an invention was obvious in light of another invention that did not yet exist, is akin to asking whether the parent was born after the child.”
In other appeals rejected yesterday, justices:
Ended Kansas investigator Daniel Rupp’s efforts to regain the federal job from which he was fired when he secretly aided a 1998 FBI probe of self-taught chemist Timothy Tobiason, who sold an “anthrax cookbook” and equated himself with Timothy McVeigh. Mr. Rupp’s bosses in the federal public defender’s office at Wichita said he created a conflict of interest by cooperating with the FBI.
Declined to enter a California debate over how far the federal government may go to protect fairy shrimp and vernal pool tadpole shrimp under the Endangered Species Act. Builders attacking the law said residents “run the risk of violating federal law by simply walking on their land [and] placing a foot in a puddle of water.”
Refused a request by DaimlerChrysler Corp. to clarify when a case may be moved from state court to federal court, an issue on which lower courts disagree, Chrysler attorney Jeffrey S. Sutton pleaded in vain. The company is defending a lawsuit over peeling paint by California owners of Chryslers, Dodges and Plymouths made between 1986 and 1997.
Rejected Ohio’s efforts to block a federal hearing on claims of innocence by John W. Byrd Jr. in the 1983 stabbing death of a Cincinnati convenience store clerk. State officials scheduled Byrd’s execution for Feb. 19 despite federal appeals court intervention after accomplice John Brewer belatedly confessed.

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