Merck Loses Nasonex Patent Ruling Against Apotex in N.J.

Merck & Co. (MRK)’s patent for the allergy drug Nasonex isn’t infringed by Apotex Inc., a federal judge ruled.

U.S. District Judge Peter Sheridan said today that Merck’s Schering unit had “failed to present credible evidence” of infringement, according to a court filing in Trenton, New Jersey. Sheridan also denied Apotex’s claim that Schering’s patent was invalid.

Schering sued Apotex in 2009, claiming that it had filed a new-drug application with the U.S. Food and Drug Administration for a generic nasal spray that would infringe Schering’s patents. The patent at issue in this ruling expires in 2018, Merck said in a statement today.

“We’ll very likely appeal and seek an injunction,” Ron Rogers, a spokesman for Whitehouse Station, New Jersey-based Merck, said in a telephone interview. “As far as we know, the FDA has not approved Apotex’s application. We do not expect generic competition near-term.”

Elie Betito, a spokesman for Toronto-based Apotex, didn’t immediately return messages seeking comment on the ruling.

Apotex claimed that its proposed product -- a nasal spray to reduce symptoms of rhinitis -- has an active ingredient that’s different from Schering’s, according to court papers.

The case is Schering Corp. v. Apotex, 09-06373, U.S. District Court, District of New Jersey (Trenton).

To contact the reporter on this story: Don Jeffrey in New York at

To contact the editor responsible for this story: Michael Hytha at

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