Bausch & Lomb files suit to protect vitamin

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Expanding its war on what it claims are poachers of it PreserVision eye-vitamin’s patented formula, Bausch & Lomb Inc. last week sued two alleged infringers on the vitamin and anti-oxidant cocktail’s recipe.

The new complaints, filed Oct. 6 in U.S. District Court in Rochester target Michigan-based Doctor’s Advantage Products LLC and Long Island-based Vitamin Science Inc.

They join an eye-care company PreserVision patent infringement claim targeting Michigan-based Vitamin Health Inc. Also filed in the Rochester federal court, the Vitamin Health case has been ongoing since fall 2013.

The formula Bausch & Lomb seeks to protect in all three cases is the recipe for its PreserVision AREDS2 product.

The newly filed actions cite Doctor’s Advantage’s Macular Shield AREDS2 product and Vitamin Science’s Visi-Vite AREDS2 Red Formula as infringing products. 

Officials of both companies did not respond to requests for comment.

The 2013 Vitamin Health action targets Vitamin Health’s Viteyes AREDS2 supplement.

AREDS2 vitamin cocktails are formulated to slow the onset of age-related macular degeneration, a vision impairing condition that mostly hits the elderly and can lead to virtual blindness if unchecked.

Bausch & Lomb, Wyeth Laboratories Inc. and the National Institutes of Health’s National Eye Institute worked jointly in 2001 to develop the first AREDS formula in a collaboration called the Age Related Eye Disease Study.

Bausch & Lomb came out of the collaboration as a licensee with rights to the original AREDS formula, which is covered by U.S. Patent Number 6,660,297.

After a second AREDS study, the National Eye Institute, which owns the AREDS trademark, rejiggered the original AREDS formula in 2013, dropping some ingredients, adding new ones and altering the amounts of others. It calls the new formulation AREDS2. In the same year, Bausch & Lomb obtained rights to a second AREDS patent, number 8,603,522. 

In court papers in the 2013 case, Vitamin Health concedes the AREDS formulas are patentable but contends Bausch & Lomb’s claim to an exclusive right to enforce the patents does not stand up.   

As the Rochester Business Journal previously reported, Vitamin Health this year filed a related lawsuit in a Michigan federal court accusing Bausch & Lomb of making false advertising for claiming its PreserVision AREDS2 product is the only eye vitamin whose ingredients exactly matches the National Eye Institute’s AREDS2  formula. 

Bausch & Lomb’s current AREDS patent offensive reprises battles it fought before and won. 

In 2003, the eye-care company launched AREDS infringement claims against General Nutrition Cos., Leiner Health Products Inc., Rexall Sundown Inc. and Alcon Laboratories Inc. In 2004, it won all four cases. 

In rulings separately handed down in each case, U.S. District Judge Michael Telesca affirmed the AREDS patent’s validity. And each of the defendants signed court documents agreeing to honor the rulings. 

Rexall’s “officers, agents, servants and employees, are hereby permanently enjoined from making, using, selling, offering for sale or importing any product covered by U.S. Patent No. 6,660,297,” Telesca wrote in a consent decree filed as part of the Rexall case. 

That language is mirrored closely in documents Alcon, GNC and Leiner signed. To keep selling AREDS vitamins legally, GNC in 2005 inked a licensing agreement with Bausch & Lomb. 

In the Vitamin Health case, the Michigan firm sought to dismiss the eye-care company’s infringement complaint, arguing Bausch & Lomb could not defend the AREDS patents by itself but would need to be backed by two co-owners—the U.S. government and Wyeth.

An amended complaint Bausch & Lomb filed last year adds Wyeth as a plaintiff.

Refusing to concede, Vitamin Health in an answer filed last year continued to deny Bausch & Lomb has an exclusive right to sell AREDS formulation. The U.S. government also would need to intervene, the Michigan firm maintained.

In a further argument, Vitamin Health states it uses the AREDS designation as a licensee of the trademark’s owner, the Department of Health and Human Services.

The market for AREDS and AREDS2 supplements, meanwhile, is expected to grow as the baby boom generation ages. The three companies the eye-care company’s patent litigation is targeting are by far not the only vitamin sellers offering AREDS2 products.

Amazon.com offers a half-dozen other brands of AREDS2 supplements.

The more than 8,000-store Walgreen Co. in addition to PreserVision AREDS2 stocks a Netherlands-made private-label eye vitamin. Citing National Eye Institute research, the Walgreen product is labeled as an “AREDS2-based formula.”

While not naming the Walgreen chain’s product, Bausch & Lomb on its website lists PreserVision AREDS2’s virtues as including a “patented formula not available in store brands.”

A 120-pill package of Walgreens Eye Health vitamins, meanwhile, sells for $6 dollars less than PreserVision AREDS2’s 120-count bottle.

10/23/15 (c) 2015 Rochester Business Journal. To obtain permission to reprint this article, call 585-546-8303 or email [email protected].