Teva’s Generic VIGAMOX Dealt A Black Eye

Posted on | December 7, 2009 | No Comments

2009-1097 Alcon Inc. v. Teva Pharmaceuticals
D/DE 06-cv-234
Judge Sue Robinson

Defendant Teva appeals from the verdict following a bench trial before Judge Sue Robinson finding that its ANDA to market a generic version of VIGAMOX, a topical ophthalmic solution comprising the active ingredient moxifloxacin hydrochloride, infringes 6,716,830 and that the claims are valid.

A nice summary of the Court's opinion was written up by Andrew Russell over at Delaware IP Law Blog (here).  The Court rejected Teva's claim construction and invalidity arguments.

While the patent claims explicitly referred to moxifloxacin as the active ingredient, Teva argued that the patentee had redefined the term to mean something other than the plain meaning to one of skill in the art.  The Court found that argument unpersuasive and at odds with portions of the specification.  Opinion, pp. 18-21.

The Court also rejected several invalidity arguments, including anticipation.  A prior patent had disclosed a solution with a moxifloxacin concentration of "0.5 to 99.5 wt%," while the ‘830 patent claimed a concentration range of “0.1 to 1.0 wt%.”  Despite the overlap in ranges, the Court found that "range disparity" did not result in anticipation.  Id. at 23-26.  The Court also rejected related obviousness challenges.

2010-1097 Opinion

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