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Major retailers sue Allergan over Restasis

Allergan has been sued by four large US retailers that have accused it of antitrust violations related to its attempts to stop rivals from selling generic versions of its dry eye drug Restasis.

Walgreens, Kroger, Albertsons and HEB Grocery have accused Allergan of unlawfully maintaining its monopoly by securing illegal patents, and then suing rivals that have attempted to challenge those patents.

According to Reuters, the lawsuit also references Allergan’s ill-fated attempt to transfer Restasis patents to a sovereign Native American tribe in an effort to avoid scrutiny from the Patent Trial and Appeal Board (PTAB).

The retailers claimed that the drugmaker’s anticompetitive conduct has prevented a generic variant of the drug from being marketed in the US from as early as 2014, and are demanding that Allergan pay damages for its allegedly manipulative practices.

"It is Congress’ job to change it if they don’t like the system."
Jonathan Massey, Allergan counsel

The pharmaceutical company holds exclusive patents covering various elements of Restasis until 2024, including those that the company transferred to the St Regis Mohawk Tribe. However, earlier this year the PTAB refused to dismiss litigation by generic drugmaker Mylan NV, paving the way for future patent challenges.

The fallout from the case is still ongoing, with Bloomberg reporting that Allergan was continuing to defend its use of the tribe’s sovereign immunity via the US Court of Appeals for the Federal Circuit in Washington.

The company and tribe have said there’s no reason they shouldn’t be able to take advantage of the law if it allows, while two out of the three judges presiding over the case have questioned whether Allergan is simply seeking to circumvent review by the Patent and Trademark Office.

“I would lay this on Congress’ door,” Mr Jonathan Massey, the lawyer representing Allergan and the Mohawks told the court.

“It is Congress’ job to change it if they don’t like the system.”

However, Circuit Judge Jimmie Rayna said Allergan’s actions could harm review procedures should other companies also try to emulate the legal manoeuvre, while the Justice Department’s lawyer described the attempts to protect the patent as a “shell game”.

The Supreme Court had previously upheld the constitutionality of the reviews and rejected arguments that only courts could strip companies of already issued patents, prompting Allergan to appeal.


Sales of Restasis reached US$1.47 billion (AU$1.97 b) in 2017, which accounted for around 9% of Allergan’s US$15.94 billion (AU$21.41 b) of overall net revenue.

Image courtesy: Pixabay | Succo

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