Allergan Wins Partial Summary Judgment on Latisse Patent Infringement Suit

March 12, 2013, by Mandour & Associates, APC

Los Angeles – A Los Angeles federal judge granted partial summary judgment to Allergan, Inc. on Tuesday, saying that Allergan had proven that Cosmetic Alchemy, LLC had induced its customers to infringe Allergan’s patent that covers its popular growth drug for eyelashes.

Allergan argued that Cosmetic Alchemy induced its customers to infringe Allergan’s patents by providing a product containing bimatoprost to accelerate hair growth and providing instructions that mirrored Allergan’s patented methods.

U.S. District Judge James V. Selna of the Central District of California in Los Angeles sided with Allergan and ruled that Cosmetic Alchemy had induced its customers to infringe Allergan’s patent for Latisse by directing its customers to apply its eyelash growth drugs, LiLash and LiBrow, using exactly the same steps as Allergan’s patented methods describe in U.S. Patent Number 6,262,105.

“There is no genuine dispute of material fact precluding summary judgment on the contributory infringement claim,” Judge Selna wrote.  “Thus, the undisputed facts show that Cosmetic Alchemy, through its advertisements, communications with customers, product instructions, and sales, intends to induce and does induce customers to follow each step of the patented methods in the ‘105 Patent.”

Cosmetic Alchemy argued that Judge Selna should not grant the request for summary judgment because the compound used to promote hair growth has unpredictable results and testing has not been performed to prove that LiLash promotes hair growth.  Cosmetic Alchemy also claimed that it does not claim its products make hair grow in its marketing materials.

Judge Selna said that Cosmetic Alchemy’s lack of testing argument is weak and said that the company did nothing to prove that bimatoprost does not grown hair.  He also pointed out that Allergan submitted evidence that consumers have experienced hair growth when using products containing bimatoprost and that Cosmetic Alchemy marketed LiLash as a product to increase hair growth.

The lawsuit started when Allergan filed lawsuits against several providers of eyelash-growth products, including Cosmetic Alchemy in 2007.  The complaints accused the companies of patent infringement and of engaging in unfair competition by selling hair growth products that had not been approved by the U.S. Food and Drug Administration.

The judge has yet to rule on Allergan’s other claims against Cosmetic Alchemy.

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