Retiring Eli Lilly GC Worked to Transform the IP Landscape

Lisa Shuchman

Corporate Counsel

2012-09-14 00:00:00.0

When Robert Armitage retires from his post as general counsel of Eli Lilly and Company at the end of the year, he will be leaving his mark not just on the company but also on the laws governing intellectual property in the United States.

Eli Lilly announced recently that Armitage, who is approaching mandatory retirement age, will retire December 31 and will be replaced by the company’s current deputy general counsel, Michael Harrington. (See: “Eli Lilly General Counsel Steps Into Big Legal Shoes.”)

The 64-year-old Armitage, who has been Lilly’s GC for 10 years, was a key player in the recent rewriting of U.S. patent law—a move that culminated in passage of the America Invents Act last year. That feat, which Armitage says he started working on almost three decades ago, has been hailed as one of the most significant changes to the U.S. patent system since passage of the U.S. Patent Act in 1952. His efforts raised his profile in the business world, in the halls of Congress, and in the IP universe. It even landed him in the IP Hall of Fame—an honor given to individuals who have made an outstanding contribution to the development of today’s IP system.

Armitage said he had to convince businesses with divergent interests that reforming the patent system would be in everyone’s interest. He testified before Congress on several occasions, explaining that a move to the first-to-file system—one of the most contentious issues that became part of the final America Invents Act—should be the law of the land. Most people thought making such a fundamental shift in the principles of patent law would not be possible, he said, but he wouldn’t give up. 

“It became clear to me over the course of my career that the patent system needed to be changed so it could continue to be an engine of economic growth,” he told CorpCounsel.com. “It needed to be more transparent, predictable, simple, and objective, and I believe that’s what we got with the America Invents Act.”

Armitage did not initially set out to become an expert on intellectual property. He wanted to be a physicist and earned a master’s degree in physics from the University of Michigan in 1971, but after one year in a Ph.D. program at the university, he decided to go to law school. “There was no job market for physicists back then and I was already on campus, so I decided to stay and study law,” he said. At law school, Armitage considered specializing in tax law. Oddly enough, he did not do particularly well in his intellectual property law class, he said: “I thought intellectual property law was strange.”

In what he said was one of “a series of accidents,” Armitage, who grew up in the Midwest, decided after law school that he didn’t want to move to a big city to practice law. So when the Upjohn Company, which at that time was a major multinational pharmaceutical company based in Kalamazoo, Michigan, offered him a job at a patent trainee, he grabbed it. IP law stopped looking strange. He eventually became Upjohn’s chief patent counsel—a position he held for 10 years.

But after a decade in that job, Armitage, who notes that 10 years seems to be his limit, decided to move on. Rather than go to another large company, however, he decided to enter private practice—moving in the opposite direction of the traditional career path. He joined the Washington D.C. office of Vinson & Elkins as a partner, and although he had no clients, he was charged with the task of creating an IP practice there. He was successful, bringing in clients from different types of businesses, including some from the pharmaceutical industry. Eli Lilly was one.

“He definitely impressed them,” said Charles Lipsey, a partner at Finnegan, Henderson, Farabow, Garrett & Dunner who often represents Eli Lilly and has known Armitage for 20 years. In fact, Lipsey first met Armitage when he asked the Vinson & Elkins attorney, who was already becoming known as a leader in the patent bar, to be an expert witness in a trial in which he was representing Lilly. “He was a last-minute substitute for an expert witness who wasn’t working out, and I learned then that he was one of the smartest people I have ever met in my life,” Lipsey recalled.

The executives and lawyers at Lilly agreed, and in time the company convinced Armitage to return to the Midwest. He joined the Indianapolis-based company in 1999 as vice president and general patent counsel, and three years later he was named senior vice president and general counsel.

During Armitage’s tenure, Lilly has seen its share of tough litigation. Product liability issues surrounding its anti-psychotic drug Zyprexa posed a major threat, as the drug generated a huge portion of the company’s revenues. And Lilly also faced patent challenges to its anti-depressant drugs Prozac and Cymbalta.

Lipsey, who represented Lilly in much of the patent litigation, jokes that it was easier to control Armitage when he worked for him as an expert witness than when the tables were turned and Lipsey worked for Armitage. “Working for Bob has been a different experience because he is an expert in IP, so the dialogue always goes deeper,” Lipsey said. Once, when asked by a reporter what he thought Lilly’s chances were in an appeal of a $68 million verdict that went against the company, Armitage said: “I am more worried about getting hit by a meteor than having this patent upheld on appeal.” It was a bold prediction, Lipsey said—but Armitage turned out to be right.

With all his successes as Lilly’s general counsel and as a tireless campaigner for reform of the U.S. patent system, Armitage says he still would like to see further reforms. But just as he felt it was time to leave Upjohn after 10 years, Armitage says a decade is as long as anyone should be in his job. “After 10 years, you need someone with fresh energy and ideas,” he said.

Armitage, who will likely be in demand after he leaves Lilly, isn’t saying what his next move will be, other than he plans to move to the East Coast, where his daughters now live. “I’m making no professional commitments until after I retire,” he said.