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Patent infringement claims push eyelash growth products out of U.S. market

Article-Patent infringement claims push eyelash growth products out of U.S. market

San Jose, Calif. — Jan Marini Skin Research, which sells Age Intervention Eyelash Conditioner, has suspended U.S. sales of the product to avoid further conflict with the FDA and a pending patent battle with drug firm Allergan Inc., reports The Wall Street Journal.

Jan Marini, chief executive of the San Jose-based company, told The Journal that her company began notifying customers in January that it would no longer sell the eyelash product domestically. Ms. Marini and several other companies sell eyelash products that contain ingredients similar to those in prescription drugs that treat an eye disease.

In November 2007, the FDA seized several thousand tubes of a similar, discontinued Jan Marini product that the agency called a “misbranded drug” that may increase the risk of optic-nerve damage. The FDA has not yet acted against the reformulated version of the product that the Marini firm has now withdrawn from the U.S. market.

According to Bloomberg News, in November Irvine, Calif.-based Allergan Inc., the maker of glaucoma treatment Lumigan, sued seven companies — one of them Jan Marini Skin Research — alleging they were improperly selling related products that claim to grow eyelashes. In addition to Jan Marini’s pre-reformulated Age Intervention brand, the Allergan lawsuit targets products such as MassiveLash, DermaLash, Luxette and MD Lash Factor.

In its lawsuit, Allergan said these products contain compounds called prostaglandins (PGF) and infringe a patent for using the substance to grow eyelashes. That patent is licensed to Allergan.

Cayman Chemical Co. of Ann Arbor, Mich., another company that was sued by Allergan, says it doesn’t make any cosmetics, only the prostaglandin. According to Bloomsburg News, Cayman Chief Executive Kirk Maxey says all patents on the actual compound have expired and Allergan’s patent is just for a method of using it.

“We certainly are going to defend ourselves and don’t infringe the patent,” Mr. Maxey told Bloomsburg News. “We make prostaglandin and sell it to anyone who wants [it]. What happens then is their business.”

In addition to Jan Marini and Cayman Chemical, Allergan sued PhotoMedex Inc. of Montgomeryville, Pa.; Athena Cosmetics Inc. of Henderson, Nev.; DermaQuest Inc. of Hayward, Calif.; Intuit Beauty Inc. of Las Vegas; and Civic Center Pharmacy of Scottsdale, Ariz.

In the wake of the FDA’s November seizure of Jan Marini’s Age Intervention, Athena withdrew its Revitalash eyelash-enhancing product from the market, according to news source

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