On Wednesday a case was filed in the Central District of California by Pharmavite against Bausch & Lomb Inc. and PF Consumer Healthcare 1 LLC. The case accuses Bausch & Lomb of attempted monopolization of the eye health supplement market.
The plaintiff accuses Bausch & Lomb of attempting to monopolize the eye vitamin market in three ways. The first is by making false advertising claims using an expired patent. Pharmavite indicates that there is was a patent (while reserving the right to challenge the validity of that patent) regarding the composition of the ARED vitamin and mineral supplement formulation that was held by Bausch & Lomb. Composition patents are valid for 20 years and the ARED patent was filed on March 23 2001, so the patent expired on March 23, 2021, but Bausch & Lombs’ packaging for the product continued to make the claim that the product was the only patented vitamin formulation, which would have been false advertising and unfair competition after the expiration date.
The second claim for attempted monopolization was regarding a second patent (to which Pharmavite also reserved the right to challenge the validity of), a method of use patent. Method of use patents are limited to the method included in the patent application and cannot be extended to other uses by definition. Pharmavite argues that the any advertising of this use patent without making clear the limited use categories is also misleading to the public and constitutes false advertising and unfair competition.
Finally, Pharmavite accuses the defendants of filing sham patent litigation regarding both of the above mentioned patents and indicates that the defendants knowingly filed the sham litigation in a jurisdiction that was an improper venue.
The plaintiff is suing for monopolization created by the patent issues, conspiracy to monopolize, declaration of non-infringement of the patents, and a judgment of patent misuse. Plaintiff is represented by Tatro Tekosky Sadwick LLP and Quinn Emanuel Urquhart & Sullivan LLP.
