Zachary Silbersher, a patent attorney, has been a constant irritant for Allergan (acquired by AbbVie) for a number of years
However, AbbVie defeated Silbersher on Thursday in a unique whistleblower case.
His contention that Allergan and Adamas Pharmaceuticals extended their monopoly on two Alzheimer's drugs by using false patents was unanimously rejected by a three-judge panel of the US Court of Appeals for the Federal Circuit. This decision also questioned the legitimacy of Silbersher's claim that Allergan and Adamas Pharmaceuticals used fraudulent patents to extend their monopoly on two Alzheimer’s drugs, which allowed them to overcharge the government.
The Alzheimer's medications Nameda XR and Namzaric, which were licenced to Allergan, were at issue in the 2018 case. In order to get patents, according to Silbersher, the businesses selectively published research and distorted study findings.
The appeals court dismissed the complaint after ruling that the public disclosure bar applied in this instance.
Whistleblower complaints based on information that is available to the public are forbidden by the bar. The decision overturns a district court decision that rejected Allergan's request to have the False Claims Act action dismissed.
The case is interesting because typically, whistleblower complaints are made by employees using information they learned while employed by the organisation. But by an unique section of the legislation that enables plaintiffs to receive damages in situations when the government was affected, they can also be brought by other people with inside information.
Silbersher has also pursued comparable claims against Johnson & Johnson and Valeant Pharmaceuticals, now known as Bausch, using his understanding of patent law.
Years previously, Silbersher had successfully battled a proceeding that implicated Valeant and the same patents, but in May, a Northern California district court decided that his action against Valeant likewise breached the public disclosure bar and dismissed it as "parasitic."
After the company's move to dismiss was denied in December of last year, the case against J&J is still pending.
Boehringer Ingelheim was represented by Silbersher in a patent dispute involving the well-known immunology medicine Humira in a separate action against AbbVie. Boehringer refused to cooperate with Allergan after other Humira biosimilars manufacturers did so. But the business also made a settlement deal in 2019.