A Purple Passion

Errol Taylor is best known as the warrior for the purple pill. A partner in New York's Fitzpatrick, Cella, Harper & Scinto, Taylor has spent the past five years representing AstraZeneca PLC in litigation over its anti-ulcer drug Prilosec. Although Taylor is admitted to the patent bar and has experience as a research scientist, he prefers litigation. "There's nothing I like more than going to trial," he says.

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Errol Taylor is best known as the warrior for the purple pill. A partner in New York’s 160-lawyer Fitzpatrick, Cella, Harper & Scinto, Taylor, 47, has spent the past five years representing AstraZeneca PLC in litigation over its anti-ulcer drug Prilosec, a widely advertised medication that had nearly $6 billion in sales in 2001. AstraZeneca’s patent for the chemical compound in Prilosec expired in October 2001, but other patents for the drug are active. These formulation patents cover the way the Prilosec pill is coated and delivered to the human body. The company, like many others, has been accused of using these “add-on” patents to extend its monopoly. Taylor denies this emphatically. “Medicine is not just a molecule,” he says. “There is more than one invention involved in making a chemical compound into a medicine.” Taylor scored a partial victory last October, when Judge Barbara Jones of the Southern District of New York found two Prilosec patents valid through 2007. The suit was filed in 1998 and went to trial in December 2001. The last trial day was in mid-June, but Jones waited five months to issue her ruling. Taylor says her 277-page ruling took “days to read and understand. That’s not surprising for a trial of this length.” Jones found that three of the four defendants infringed the patents: the Andrx Group, GenPharm Inc. and Cheminor Drugs Ltd. A fourth defendant, Germany’s Schwarz Pharma AG’s U.S. subsidiary KUDCO, did not infringe because its formulation was unique. Judge Jones “said that we did not prove that they had one of the claimed element in the pharmaceutical formulation patent,” says Taylor. All parties have appealed some part of Jones’ ruling to the U.S. Court of Appeals for the Federal Circuit. Now Taylor’s preparing for his next Prilosec trial. In late 2001, AstraZeneca sued six other generic manufacturers for patent infringement. Jones will also hear this case, which is in discovery. Prilosec is pricey, costing about $4 a pill, but Taylor is unsympathetic toward those who complain that patents contribute to the high cost of prescription drugs. “It took AstraZeneca more than 20 years from the time they started their research to get the [Food and Drug Administration] approval of Prilosec,” he says. “People who belittle these inventions have no understanding of what it took to get to this invention.” Taylor, a Jamaica native, received his undergraduate degree in biology from the State University of New York at Oswego in 1977. He spent 10 years as a research scientist at Squibb Corp. before entering New York Law School in 1987. Taylor is admitted to the patent bar but has never prosecuted a patent. He didn’t want to be a “quasi-science person” as a prosecutor, he says. As a litigator, Taylor has worked with scientific pioneers that he wouldn’t have met if he had remained a scientist, he says. These include Harvard Professor Elias Corey, a Nobel laureate in chemistry and MIT Professor Robert Langer, who Taylor calls “one of the most accomplished scientists ever in the drug delivery field.” Taylor joined Fitzpatrick Cella after law school, lured by the firm’s large pharmaceutical industry client base and the assurance that he could only do litigation. Cross-examining expert witnesses is Taylor’s favorite part of litigation, he says. It’s where lawyers “prove their mettle.” Taylor was put to the test when he represented Bristol-Myers Squibb Co. in its suit against generics manufacturer Barr Laboratories Inc. in 1999. Bristol-Myers’ patent covered the grooves in the anti-depressant Desyrel that can be used to break up the pill into smaller doses. Taylor brought suit in federal court in the Southern District of New York before Judge John Sprizzo. Federal rules require that the substance of expert testimony by clearly disclosed before trial. During cross-examination, Taylor was able to expose that much of the expert’s testimony hadn’t been disclosed, and “in one instance the expert had just devised his opinion on the fly that same morning.” His cross worked. The judge found that Barr infringed the patents. Barr did not appeal the ruling. It remains one of Taylor’s favorite cases: “There’s nothing I like more than going to trial,” he says.

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