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March 2 (Bloomberg) -- Dainippon Sumitomo Pharma Co.’s Sunovion Pharmaceuticals unit won a court ruling invalidating five of seven Mylan Inc. patents related to a compound used in the bronchitis and emphysema drug Brovana.

U.S. District Judge John Koeltl in Manhattan also limited any damages that might be assessed on the two remaining patents, according to a filing. He granted Marlborough, Massachusetts-based Sunovion’s motion for partial summary judgment.

Koeltl said in yesterday’s ruling that the two remaining patents had “substantially” changed during a review by the U.S. Patent and Trademark Office, and so Canonsburg, Pennsylvania-based Mylan is barred from collecting damages related to sales before October 2011.

“Mylan is disappointed in today’s ruling and believes the court erred in its decision,” Mylan said in a statement. “Mylan intends to appeal the decision.”

The company also said it intends to continue to “pursue damages and an injunction with respect to” the two patents on which the judge limited damages.

Mylan’s Dey unit sued Sunovion’s predecessor company, Sepracor, in 2007 to block the introduction of Brovana, which Dey said infringed its patent for a spray to open bronchial passages. Dey was owned by Merck KGaA when the suit was filed.

The patents are related to the compound formoterol. Brovana’s active ingredient is a variation of formoterol.

The case is Dey v. Sepracor, 07-cv-02353, U.S. District Court, Southern District of New York (Manhattan).

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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