Canada’s biggest drug maker Apotex was recently sued by U.S. pharmaceutical giant Allergan after the Canadian company, which specializes in generic pharmaceuticals, filed an application with the FDA to make and sell a generic version of Latisse eyelash enhancer.
Allergan filed the lawsuit in the U.S. District Court for the Middle District of North Carolina, arguing that Apotex infringed three Latisse patents by submitting the FDA application and that its proposed generic drug would violate the patents as well.
Allergan has marketing exclusivity for Latisse until late 2011 and is further protected by patents that expire as far out as mid-2024, Apotex had no business filing an application with the FDA seeking approval to make and sell generic Latisse.
Apotex maintains that while two Latisse-related patents are valid and enforceable, the third patent is irrelevant and would not prevent Apotex from forging ahead with a Latisse knock-off. Apotex also alleges to have sent Allergan a letter in July 2010 explaining the company’s stance.
After Latisse launched its massive advertising campaign featuring Brooke Shields and now, Claire Danes, it didn’t take long for consumers to figure out that instead of using one Latisse applicator per upper eyelid each day as directed, they could get double the treatments (and spend half the money) by using one Latisse applicator on both upper eyelids each day.
Considering consumers’ conservative use of Latisse and the resulting lower-than-expected sales figures, Allergan’s move to protect its eyelash enhancement market share by suing Apotex over its plans to promote a Latisse copycat is no surprise.
In June 2010, Allergan lowered its full-year Latisse sales forecast to a range of $90 million to $100 million, down from a prior $140 million goal. A $40 million to $50 million profit decrease may not seem like much for a company that pulled in over $4.5 billion last year, but Allergan stands to lose twice as much if a generic Latisse product catches on.
