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Patent lawsuit filed by Allergan

The company alleges that its prostaglandin is being used in products that stimulate the growth of eyelashes.

November 20, 2007|From Bloomberg News

Allergan Inc., the maker of the glaucoma treatment Lumigan, sued seven companies it said were improperly selling related products as ways to grow eyelashes.

The companies sell cosmetics with names such as MassiveLash, DermaLash, Luxette, Age Intervention and MD Lash Factor, Allergan said Nov. 7 in a lawsuit filed in U.S. District Court in Santa Ana. All contain compounds called prostaglandins and infringe a patent for using the substance to grow eyelashes, the company said.

Lumigan contains bimatoprost, a type of prostaglandin, or PGF. It and similar prescription drugs using prostaglandin are approved only to treat glaucoma. Glaucoma specialist Murray Johnstone noticed in 1996 that patients using the solutions grew longer lashes. He patented his finding and licensed it to Irvine-based Allergan, the company said.

The other companies infringe the patent "by marketing and selling eyelash growth products with a PGF as the active ingredient," Allergan said in the complaint. "They are also responsible for marketing and selling products without prescriptions that have not been approved by the FDA for eyelash growth or for over-the-counter sales."

The company asked for a court order to keep companies from selling the products. Allergan doesn't make a product just for eyelash growth. It does make the wrinkle treatment Botox.

The Food and Drug Administration said last week the U.S. seized some $2 million worth of Age Intervention by Jan Marini Skin Research Inc. of San Jose, one of the companies Allergan sued. The FDA said the product may increase the risk of optic- nerve damage, which can lead to blindness.

Jan Marini said it hasn't made or marketed the seized product for more than a year and had no record of any safety problems. It sells a new formulation of Age Intervention that doesn't contain bimatoprost, it said. The complaint doesn't specify which version is the target of the suit.

Jan Marini General Counsel Stewart Stone said the company had reviewed the Allergan patent and doesn't think it violates Allergan's rights.

"We will defend it as vigorously as a small company can that's under attack from an industry behemoth," Stone said.

Cayman Chemical Co. of Ann Arbor, Mich., another company that was sued, said it doesn't make any cosmetics, only the prostaglandin. Chief Executive Kirk Maxey said all patents on the actual compound had expired. Allergan's patent is just for a method of using it.

"We certainly are going to defend ourselves and don't infringe the patent," Maxey said. "We make prostaglandin and sell it to anyone who wants. What happens then is their business."

In addition to Jan Marini and Cayman Chemical, Allergan sued PhotoMedex Inc. of Montgomeryville, Pa.; Athena Cosmetics Inc. of Henderson, Nev.; DermaQuest Inc. of Hayward, Calif.; Intuit Beauty Inc. of Las Vegas; and Civic Center Pharmacy of Scottsdale, Ariz.

Those companies either declined to comment or didn't return calls seeking comment.

Shares of Allergan fell $1.87 to $62.75.

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