Patent infringement suit filed over pre-colonoscopy bowel cleansing product

The Massachusetts company behind the bowel cleansing product patients use prior to having a colonoscopy has filed a federal lawsuit against a Pennsylvania company and a Florida company over claims that the defendants infringed on the plaintiff’s patent.

Lawyers representing Braintree Laboratories Inc. filed suit at U.S. District Court in Philadelphia on April 15 against Newtown, Bucks County-based KVK-Tech Inc. and St. Augustine, Fla.-based Gator Pharmaceuticals Inc. over allegations that the two companies infringed on the plaintiff’s patent for SUPREP, which is a sodium sulfate, potassium sulfate and magnesium sulfate osmotic laxative used for bowel cleansing prior to having a scheduled colonoscopy procedure.

The complaint says that Braintree has been the lawful owner of the patent, titled “Salt Solution for Colon Cleansing,” since it was issued by the U.S. Patent and Trademark Office on Sept. 20, 2005.

Early last month, the suit states, Gator notified Braintree that it had submitted an application to the Food and Drug Administration seeking approval to market its generic powder version of SUPREP BC Powder for Oral Solution Kit prior to the expiration of the plaintiff’s patent.

KVK, the suit says, participated and/or assisted in the drafting of the application’s filing.

The plaintiff asserts that the defendants’ filing of the application constitutes an infringement of the patent because the generic product has the same active ingredients and the same strengths as the corresponding components of SUPREP.

Braintree seeks to have a court ensure that the effective date of any FDA approval of the defendants’ drug application shall not be earlier than the expiration of the drug exclusivity afforded to the plaintiff in its patent.

Braintree also seeks to have a judge permanently enjoin Gator and KVK from making, using, offering to sell or selling in the United States their BC Powder for Oral Solution Kit until after the expiration of the plaintiff’s patent.

The plaintiff also seeks attorneys’ fees, expert witness fees and costs.

The complaint was filed by attorneys Charles S. Marion and Noah S. Robbins, of the Philadelphia law firm Pepper Hamilton.


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