For the last several years, patent attorney Zachary Silbersher has been a stone in the shoe of Allergan and now the company that acquired the Irish drugmaker, AbbVie.
But on Thursday, AbbVie got a win over Silbersher in an unusual whistleblower case. In federal circuit appeals court, a three-judge panel ruled unanimously against the legitimacy of his 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 2018 lawsuit involved Adamas’ Alzheimer’s drugs Nameda XR and Namzaric, which were licensed to Allergan. Silbersher claimed that the companies selectively reported research and misrepresented results of studies to receive patents.
The appeals court said that the public disclosure bar applied in this case and dismissed the lawsuit. The bar prohibits whistleblower complaints that are based on information that is publicly available. The ruling overturns a district court order which denied Allergan’s motion to dismiss the case under the False Claims Act.
The case is unusual because whistleblower complaints usually are filed by employees based on information they obtained working for a company. But they also can be filed by others with inside information through a specific part of the law that allows plaintiffs to recover damages in cases where the government was harmed.
With his knowledge of patent law, Silbersher also has used this pathway to bring similar claims against Johnson & Johnson and Valeant Pharmaceuticals, now known as Bausch.
In May, a Northern California district court ruled that his case against Valeant also violated the public disclosure bar and dismissed it as “parasitic.” Years earlier, Silbersher had successfully litigated a proceeding that involved Valeant and the same patents.
The case against J&J remains ongoing after the company’s motion to dismiss was rejected in December of last year.
In a separate case against AbbVie, Silbersher represented Boehringer Ingelheim in a patent fight involving the blockbuster immunology drug Humira. After other makers of Humira biosimilars had settled their cases with Allergan, Boehringer remained a holdout. But in 2019, the company also agreed to settle.