Bimatoprost – USA

Bimatoprost – USA

On Mar 17, 2017, The Federal Circuit on Friday affirmed a lower court’s dismissal of Allergan’s patent suit against Sandoz over planned generic versions of the eyelash growth stimulant Latisse (Bimatoprost), finding the suit barred because the issues were already litigated in a prior case.

The Federal Circuit affirmed in-part & denied in-part District Court’ judgment with respect to collateral estoppel issue& invalidation of all claims of US 8,926,953.

After the USPTO issued the ’953 patent, Allergan filed two complaints asserting claims 1–26 of the ’953 patent against Sandoz (First Amended Complaint). These complaints form the basis for this appeal. However, Allergan was given leave to file second amended complaints, which reduced the disputed claims to claims 8, 23, and 26 of the ’953 patent (“the Asserted Claims”) (Second Amended Complaint).

Sandoz filed a motion to dismiss the subject suit pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted based on collateral estoppel, J.A. 957–62, 1918–21, which the District Court granted, Allergan, Inc. v. Sandoz, Inc. (Allergan IV), Nos. 1:14-cv-1028, 1:14-cv-1034 (M.D.N.C. Aug. 31, 2015) (J.A. 1–13).  The District Court stated that “[t]he ’953 patent at issue in this case claims . . . substantially the same subject matter as invalid ’404 patent claim 14 and the relevant claims of the ’054, ’161, and ’988 patents.” The District Court also entered judgment for Sandoz, holding that “[t]he ’953 patent is hereby declared and adjudged invalid as obvious.

Allergan appealed. For collateral estoppel issue CAFC denied Allergan’s arguments as non-persuasive & with respect to invalidation, CAFC said that District Court Erred in Invalidating the Entire ’953 Patent and invalidated only asserted claims. 
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