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Allergan Inc., the Irvine-based maker of Botox, eye drugs and other products, won a round in court last week in a patent battle over its Latisse eyelash grower.
A federal appeals court in Washington, D.C., reversed a lower court loss for Allergan and sent the case back to a federal district court in Santa Ana.
Allergan originally filed suit against several companies in 2009, including Athena Cosmetics Inc. of Henderson, Nev., and Cosmetic Alchemy LLC and Stella International LLC, both of Arizona.
The drug maker alleged those companies infringed upon Latisse’s patents or induced others to infringe, according to a Reuters report.
The district court initially dismissed the case, ruling that Allergan failed to prove it was injured by alleged patent infringement.
The appeals court, which specializes in patent cases, disagreed. Allergan had “plainly alleged an economic injury that was the result of an unfair business practice,” the court said.
An Allergan spokeswoman said the company was pleased with the ruling.
Allergan is no stranger to suing companies it believes are infringing on a patent for bimatoprost, Latisse’s active ingredient.
In 2007, Allergan filed a patent-infringement suit against seven companies over bimatoprost. In a Women’s Wear Daily article, officials representing the defendants said Allergan was trying to do “market cleansing” prior to introducing Latisse in 2009.
Latisse could face more competition. In July, the Food and Drug Administration said it received a request to market a generic version of Latisse via a patent challenge.
Regulators didn’t disclose the company. In September, Allergan said in court papers that Toronto generic drug maker Apotex Inc. filed a request to market a generic of Latisse.
Allergan’s patent covering bimatoprost expires in 2012. Latisse has other patents that stretch until 2024.
Latisse is a small but growing part of Allergan, which has yearly sales of $5 billion.
For the first quarter, Latisse accounted for $25.3 million in sales, up 34% from a year earlier.
Chief Executive David Pyott singled out Latisse in Allergan’s first-quarter conference call in early May.
Latisse’s performance during the quarter was attributed to promotional offers for doctors and consumers, Pyott said.
“Consumer research conducted at the end of last year pointed to the strong need to stimulate initial purchase as consumer satisfaction, having used the product, is high,” he said.
Allergan’s “experienced good uptake” for Latisse in Canada and just started selling the drug in three markets—Brazil, Hong Kong and Singapore—according to Pyott.
Mexican health regulators have approved a consumer campaign for the drug there, he said.
“Signs of Life”
Latisse is “finally showing some signs of life,” said Amit Hazan, an analyst who follows Allergan for New York investment bank Gleacher & Co., in a report on a survey he did with dermatologists.
Doctors that Hazan said he surveyed wrote an average of 39 prescriptions for Latisse, up 11% from a year earlier.
On Allergan’s call, Pyott suggested analysts should “stick to our guidance.”
“Don’t get too enthusiastic,” he said. “We’re happy this quarter finally was a good one after some disappointing ones, frankly.”
Allergan has projected full-year Latisse sales to come in at $100 million.
Latisse came about after Allergan found that bimatoprost, the active ingredient of its Lumigan glaucoma treatment, grew eyelashes.
Company officials have been high on the drug and what it could mean for the company.
Back when Latisse was released, Pyott said he expected it could do well because it was relatively inexpensive.
Allergan had projected Latisse’s average cost to a patient at $120, compared to $450 to $500 for Botox injections for wrinkles and $600 or more for injections of lower face wrinkle filler Juvéderm.
Latisse also is expected to draw customers to Allergan as young as in their late teens, compared to Botox’ 35 and older cosmetic customers, according to Pyott.
“This is a great traffic builder for” cosmetic surgeons, he said.