OSRX, Inc. Responds to Jury Verdict in Trademark Infringement Case

OSRX, Inc. today expressed its profound disappointment with the recent jury verdict in the case of ImprimisRx, LLC v. OSRX, Inc. The company believes the decision to be unjust and not based on the facts presented during the trial. Despite this setback, OSRX remains resolute in its commitment to challenge this outcome and address the significant issues that persist.

"Leading up to the trial, OSRX won summary judgment on ImprimisRx's false advertising claims, and ImprimisRx abandoned its copyright claim," said Dylan Liddiard of Wilson Sonsini Goodrich & Rosati, who defended OSRX. "The Court did not enter final judgment based on the jury verdict, as there remain significant legal and equitable issues for the Court to decide, including laches, unclean hands, fraud on the USPTO, and the sufficiency of evidence regarding damages. We look forward to having an opportunity for the trial judge to decide these significant issues in December. This is far from over."

The case, brought by ImprimisRx, a wholly owned subsidiary of Harrow (NASDAQ:HROW), was tried in the United States District Court for the Southern District of California. The jury found OSRX, Inc. and its related party, Ocular Science, Inc., guilty of willful trademark infringement and unfair competition, awarding $34.9 million in damages.

OSRX, Inc. contends that ImprimisRx relied on several false premises during the trial, some of which include:

• "Pred," "moxi," "dex" and "brom" are not generically used abbreviations within ophthalmology for prednisolone, moxifloxacin, dexamethasone and bromfenac and were not being used prior to ImprimisRx' trademark filings.
• The trademarks "Dex-Moxi" and "Pred-Moxi" are not descriptive of the active ingredients in each medication.
• OSRX's intermittent use of the abbreviations to accurately describe the ingredients in its own medications caused "significant confusion" among prescribers in the industry.
• 100 percent of OSRX's sales were wrongfully gained through said confusion.
• ImprimisRx is entitled to 100 percent of all OSRX sales.
• OSRX is not entitled to "fair use" of these abbreviations to describe the ingredients in its medications.
• ImprimisRx was being truthful in its USPTO trademark applications when it said things like the abbreviation "TIM" could be mistaken by prescribers to mean "Traditional Indian Medicine" rather than Timolol, one of the most widely prescribed glaucoma medications in ophthalmology.
• OSRX was repeatedly asked to stop using the trademarks for many years, despite not a single cease-and-desist letter or email being produced to support that claim.

OSRX, Inc. asserts that these claims are patently false and widely recognized as such within the industry, pointing to the fact that Imprimis was unable to produce or name a single prescriber lost due to "customer confusion" and had no documented evidence of said confusion. Furthermore, the jury was barred from hearing evidence related to ImprimisRx's checkered safety and compliance record – ranging from FDA warning letters and product safety recalls to severe adverse events and even a patient fatality – as a feasible explanation for why it has lost market share to OSRX.

In addition, the jury disregarded a genericism survey conducted by a leading national expert that found nearly 70% of ophthalmologists and optometrists who prescribe compounded medications believe all of the trademarks at issue, including pred-moxi-brom, to be generic terms, which are not protectable under U.S. trademark law. This has been OSRX's position on the matter for nearly a decade.

"Sadly, this is nothing more than a billion-dollar Big Pharma company using anticompetitive tactics to try and choke out a much smaller competitor so they are free to drive up the costs of medication and monopolize the compounded ophthalmic space," said Anthony Sampietro, Founder and CEO of OSRX. "Rather than competing with us on the playing field and allowing for consumer choice, they opted to exploit the jury process. We will not be bullied or acquiesce to these unethical tactics because if we do, it's the thousands of OSRX prescribers and patients across the country who have to pay the price. I founded this company to put patients ahead of profits, and I will continue to stand my ground on that issue."

OSRX, Inc. is committed to defending its position and ensuring that its innovative contributions to the eyecare pharmaceutical market are recognized and protected. The company will explore all available legal avenues to overturn this verdict and continue its mission to provide high-quality, affordable eyecare solutions.

Case No. 3:21-cv-01305-BAS-DDL.

About OSRX:

OSRX is an FDA-registered 503B outsourcing facility committed to transforming ophthalmic care through quality compounded solutions. The Missoula, MT-based company is on a mission to redefine the landscape of the corrective eye care market with a focus on simplicity, affordability and patient-centric care. Trusted by more than 5,500 prescribers across the U.S., OSRX is providing A New View of Medicine®. Learn more at www.osrxpharmaceuticals.com.

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