Allergan, Inc. v. Apotex Inc., No. 13-1245 (Fed. Cir. 2014)Annotate this Case
The patents at issue involve a 0.03% bimatoprost ophthalmic solution that can is effective as eye drops to treat glaucoma, by alleviating intraocular pressure, or to promote hair growth. The 029 patent was assigned to Duke University and issued in 2008. The 404 patent, assigned to Allergan. Apotex submitted Abbreviated New Drug Applications (ANDAs) to the FDA seeking to market a generic version of Allergan’s Latisse® product, which treats hair loss. Allergan and Duke filed suit. In a consolidated Hatch-Waxman action, the district court held that the asserted claims of the 029 and 404 patents are not invalid for anticipation, obviousness, insufficient written description, or lack of enablement, and that Apotex infringed the patents. The Federal Circuit affirmed the district court’s claim construction that a method of “treating hair loss” may include a method of promoting hair growth without also arresting or reversing hair loss; that that in this case a previous disclosure was too sparse and ambiguous for a person of ordinary skill to comprehend as anticipating the 029 patent; and that the 819 patent does not inherently anticipate the claims of the 029 patent, but reversed findings that asserted claims of the 029 and 404 patents are non-obvious and that the 404 patent was conceived prior to the date of publication of the2001 Brandt references.
The court issued a subsequent related opinion or order on June 12, 2014.