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Posted Mar 31, 2016 by Admin

To the contrary, it contains provisions that parallel the FDCA, such that the statutes have consistent goals. (Internal citations omitted.) Moving on to the California District Courts Summary Judgment finding that Athena objectively intended to market past and present formulations of the products at issue. Now that the Federal Circuit has hit the ball into FDAs court, whether the win for Athena on the nationwide permanent injunction will continue to be a bright spot for the company (or whether it will be an evanescent win) will depend on whether or.

Athena argued that there is genuine issue of material fact about its objective intent that made Summary Judgment inappropriate.  Specifically, Athena argued that its intent should turn only on labeling and marketing materials related to its most recent formulation, and that the physical properties of.

By Kurt R. Karst Last week, in an unusual move, the U.S. Court of Appeals for the Federal Circuit waded into non-patent territory when the Court issued its decision in Allergan, Inc.

V. Athena Cosmetics, Inc. (Case No. a consolidated appeal of several decisions by the U.S. District Court for the Central District of California.  The defendants in the case allegedly manufacture, market, and/or sell products (formulations of Athenas RevitaLash line) containing a prostaglandin derivative for eyelash.

After dispensing with a jurisdictional dispute raised by Allergan that the Federal Circuit does not have jurisdirction over the appeal, the Court went on to address Athenas appeal of the California District Court decisions that the company violated the California UCL by marketing, distributing and.

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The district court abused its discretion by entering an injunction that regulates any and all out-of-state conduct, wrote the panel.  The injunction impermissibly imposes the UCL on entirely extraterritorial conduct regardless of whether the conduct in other states causes harm to California. 

Athenas marketing of the products at issue consistently discusses physical changes to eyelashes, wrote the Court.  There is no dispute that Athena made drug-related claims about an early formulationand it never expressly disavowed such claims as it reformulated its products. 

E., as drugs.  Noting that the Ninth Circuit, in United States v. Storage Spaces Designated Nos. 8 49, 777 F.2d 1363 (9th Cir. 1985 found that the intended use of a product may be derived or inferred from labeling, promotional material, advertising, or any other.

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022369 in December 2008 for treatment of hypotrichosis of the eyelashes by increasing their growth including length, thickness and darkness. Although the case has roots in a patent dispute, which the Federal Circuit  previously considered (see here and here it evolved into a dispute over.

Based on this finding, the California District Court granted Allergans Motion for Summary Judgment that Athena violated Californias Unfair Competition Law (UCL) and entered a nationwide injunction against Athena prohibiting the company from selling any and all eyelash growth product(s).

Allergans contention, however, is that the products at issue must ultimately be regulated as prescription drugsabout which Congress declined to enact such a provision.  Moreover, the California Health Code is not an obstacle to realizing federal objectives. 

Instead, the company continued to suggest that the products at issue change eyelash structure. The one bright spot for Athena is the Federal Circuits decision to vacate the California District Courts nationwide permanent injunction.