That's Not Fraud, Its Lawyer Argument

Apotex Corp. v. Merck & Co., [2006-1405](November 16, 2007)[NEWMAN, Rader, Prost] The Federal Circuit affirmed summary judgment in favor of Merck & Co. in an action by Apotex to set aside a judgment on charges of fraud, pursuant to Federal Rule of Civil Procedure 60(b)(3).
SIGNIFICANCE: Fraud upon the court requires that there was a material subversion of the legal process.
BRIEF: Apotex sued Merck for patent infringement, but the patent was found invalid under 35 USC 102(g). It was generally undisputed that Merck had invented and practiced the accused process well before Apotex had done so, but Apotex argued that it was entitled to a patent because Merck had suppressed or concealed the invention and practiced it in secret, and therefore that Merck infringed the Apotex patents. Based upon information obtained in another case, Apotex alleged that the invalidity verdict was obtained by fraud. The district court found that the allegedly fraudulent testimony was either not inconsistent or was not testimony, but mere lawyer argument, and rejected Apotex' challenge. Fraud upon the court requires that there was a material subversion of the legal process such as could not have been exposed within the one-year window; it requires rigorous proof, as do other challenges to final judgment, lest the finality established by Rule 60(b) be overwhelmed by continuing attacks on the judgment. The Federal Circuit agreed with the district court's analysis that no fraud had occurred.