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The generic version of Paxil is a bitter pill for plaintiff GlaxoSmithKline plc to swallow. The pharmaceutical giant lost a critical patent trial in March, when Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit (who took on this case in Chicago federal district court) ruled that Apotex Inc., a Canadian generic drugmaker with a U.S. subsidiary, Apotex Corp., in Chicago, did not infringe on GlaxoSmithKline’s patent on the antidepressant Paxil. (The suit was filed by SmithKline Beecham plc in 1998, before it merged with Glaxo Wellcome plc in 2000, creating GlaxoSmithKline, now the named plaintiff.) The court ruled that the generic version of the drug, though similar in nature to Paxil, was a distinct, and different, chemical compound. Judge Posner acknowledged the possibility that the generic version may contain a small amount of the patented compound, but he decided that those similar parts were an inevitable by-product of creating the compound, and occurred in too small a volume to constitute infringement. The decision deals a considerable blow to GlaxoSmithKline, which had dominated this drug niche since putting Paxil on the market in 1993. Paxil has annual sales of $3.2 billion worldwide � almost 10 percent of its parent’s total revenue. GlaxoSmithKline was using its patent to keep generic competition off the market until its expiration in 2006. In light of this ruling, Apotex plans to market its generic version of Paxil no later than 2005. For plaintiff GlaxoSmithKline plc (Brentford, Middlesex, United Kingdom) Sidley Austin Brown & Wood (Chicago): Richard O’Brien. Finnegan, Henderson, Farabow, Garrett & Dunner (Washington, D.C.): Robert Bajefsky, Ford Farabow, Howard Levine, Richard Racine, and associates Eyal Barash, Rebecca Hess, Scott Popma, Aaron Raphael, and Jennifer Swan. For Defendant Apotex Inc. (Toronto) Lord, Bissell & Brook (Chicago): Scott Feder, Paul Molino, Hugh Moore, Keith Parr, William Rakoczy, and associates Deanne Mazzochi and Kevin Nelson. Lord, Bissell was hired through a contact in the firm’s Atlanta office, who sent the work to the firm’s IP litigation group in Chicago. Lord, Bissell has worked on several of Apotex’s patent infringement cases since the mid-nineties. OUTLOOK GlaxoSmithKline is appealing this decision � leaving Posner’s fellow judges on the Seventh Circuit to rule on his opinion.

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