Appeals Court Refuses Merck's Petition for Rehearing in Fosamax Case

A federal appeals court has rejected Merck's request to reconsider a January ruling that struck down the company's patent on blockbuster osteoporosis treatment Fosamax - a decision that opened the drug to generic competition a decade early.

The U.S. Court of Appeals for the Federal Circuit refused Merck's petitions late last week for a panel rehearing and for a full court rehearing.

Judges Alan Lourie, Paul Michel and Pauline Newman filed a dissenting opinion saying they supported a rehearing before the full court, according to court documents.

Merck filed its request for rehearing in response to a Jan. 28 decision by a three-judge panel, which voted 2-1 to vacate a 2003 district court ruling that validated Merck's patent on once-weekly Fosamax (alendronate).

The appeals court's January ruling cleared the way for Teva Pharmaceutical, which had initially appealed the case to the federal circuit, to begin marketing a generic version of Fosamax beginning in February 2008. Before the January decision, Merck's patent on once-weekly Fosamax was set to expire in July 2018.