Commercial Success of Restasis Does Not Support Finding of Non-Obviousness Because Blocking Patents Suppressed Competition

Following a bench trial, the court found that plaintiff's ophthalmic drug patents were invalid as obvious and found that plaintiff's evidence of commercial success and long-felt need were insufficient secondary considerations of nonobviousness to overcome the court's obviousness determination because of plaintiff's blocking patents. "The problem with [plaintiff's] evidence of both commercial success and long-felt need is that [its] patents have long blocked others from entering the space in the market that is now occupied by [its product]. [Plaintiff] has enjoyed patent protection for the topical administration of cyclosporin to the eye since obtaining rights under [an earlier] patent [24 years ago]. . . . [B]ased principally on the presence of the blocking patents that suppressed any competition in cyclosporin/glyceride emulsion formulations, the Court concludes that the objective consideration evidence does not significantly support a finding of non-obviousness."

Allergan, Inc. v. Teva Pharmaceuticals USA, Inc. et al, 2-15-cv-01455 (TXED October 16, 2017, Order) (Bryson, CJ)