News from Abroad: Lilly Successfully Defends Zyprexa Compound Patent In Australia

    On 15 March 2013, the Australian Federal Court upheld Eli Lilly's patent for the active compound in their highly successful product ZYPREXA®.  Lilly successfully defended the validity of the patent against a wide-ranging attack by the well-known generic pharmaceutical manufacturer Apotex.  Wrays is pleased to have been able to work together with Ashurst Australia in achieving this outcome for Eli Lilly.

    The compound in question, olanzapine, was encompassed by an earlier Eli Lilly patent -- a 'genus patent'.  However, olanzapine was not explicitly disclosed in the earlier patent, and was argued to have superior properties to those compounds that were explicitly disclosed.  The later patent, in such a situation, is commonly known as a 'selection patent'.  Apotex cited the genus patent against the novelty of Eli Lilly's olanzapine, thereby providing the Australian Court with the opportunity to provide certainty on the status of selection patents in Australia.  However, the Court expressly declined to do so, deciding the issue of novelty in favour of Lilly based on standard novelty principles around the quality of the prior disclosure.  Nonetheless, the decision provides a useful example of how established selection patent principles would be applied to the patent in question:  should such principles apply, the patent would be valid.

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(Patent Docs)