Allergan’s patent troubles with Restasis mushroomed on Wednesday when four major US retailers teamed up to sue the drugmaker for a string of alleged antitrust violations.
Plaintiffs Walgreen, Kroger, Albertsons and HEB put it this way in a scathing complaint:
Allergan unlawfully maintained its monopoly through a scheme that included, inter alia, making material misrepresentations and omissions to the United States Patent and Trademark Office (“PTO”) that allowed it to obtain patents to which it was not entitled; improperly listing those patents in the FDA’s Orange Book; suing generic competitors for alleged infringement of those invalid and unenforceable patents; and then transferring ownership of the invalid patents to a sovereign Native American tribe in order to avoid judicial scrutiny of the patents.
It’s no secret that Allergan has been keen to protect its Restasis franchise, considering that the dry eye drug brought in $1.5 billion in US sales last year. When the patent was due to expire in 2014, the Dublin-based drugmaker filed — and received after some hiccups — new patents to keep generics at bay. CEO Brent Saunders also OK’d a widely criticized scheme to transfer the IP to a Mohawk tribe and then essentially lease it back in an attempt to get around the dreaded inter partes review of its patents.
With generic competitor Mylan bringing its own lawsuits, the additional patents were later invalidated, the Mohawk deal tossed out by the Patent Trial and Appeal Board. And now the retailers, having born the brunt of “artificially inflated” prices, want their money back.
If not for Allergan’s “anticompetitive conduct,” Walgreen et al reasons, generics would have been available on or shortly after the patent expiration date of May 17, 2014. Not only should the scheme stop now; it should also entitle the retailers to triple the damages in addition to costs of suit and attorney’s fees.
The case, numbered 18-02907, was filed in the federal court in the Eastern District of New York, which oversees nationwide litigation against Restasis.
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