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Federal Circuit Affirms Ruling For Merck

WASHINGTON (CN) - The Federal Circuit refused to overturn a judgment against Apotex in its lawsuit accusing Merck & Co. of infringing on a patented process for making tablets of enalapril, the compound in a medication used to treat high blood pressure.

The parties agreed that Merck had invented and practiced the process before Apotex patented it, but Apotex claimed it was entitled to the patent "because Merck suppressed or concealed the invention and practiced it in secret." Apotex said Merck obtained the favorable judgment by making false statements in a videotape describing the Merck process.

The circuit dismissed the allegation on the basis that the statements were true. Ingredients and experiments were published through the 1980s, and the process had been used continuously in Merck's plants before Apotex claimed it came up with the idea.

As a result, the lower court properly refused to compel discovery of material subject to attorney-client privilege because Apotex failed to show that Merck committed fraud. See ruling.

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