Canada’s largest drug maker, Apotex Inc., was given another chance in its bid to invalidate a patent held by Irvine-based Allergan Inc. for its anti-inflammatory eye drug Acular.
Privately held Apotex, with U.S. headquarters in Weston, Fla., has for years sought to make a generic version of Acular, which is used to treat allergies, photophobia, post-surgical pain and post-surgical inflammation.
The U.S. Court of Appeals in Washington, D.C., ruled Wednesday that a lower court in San Francisco had made a “clear error” in concluding that Allergan’s Acular patent isn’t an obvious variation of earlier discoveries.
The appeals court has ordered the lower court to re-examine the “obviousness” claim.
“The court ruling does not invalidate the patent,” said Stephanie Fagan, a spokeswoman for Irvine-based Allergan. “Allergan is confident in our intellectual property position that will be presented when the claim is reviewed at the district level.”
Allergan contends the patent at the center of the legal dispute protects the eye drug from generic competition until 2009. Federal regulators first approved the patent 13 years ago.
The drug maker, which is best known for its anti-wrinkle agent Botox, makes Acular with partner Syntex USA LLC, a unit of Swiss drug maker Roche Holding AG.
Allergan’s Fagan said that Acular generates less than $100 million in annual sales. The drug maker posted $2.1 billion in sales last year.
Shares of Allergan were off a fraction to $77.9 on Wednesday.
Allergan has been involved in a number of patent disputes in the past, according to statistics compiled by Menlo Park-based legal research company iPriori Inc. IPriori counted 10 patent cases involving Allergan since 1996.
