Evolus Inc. rose after its rival to the Botox wrinkle treatment was allowed to remain for sale in the US temporarily while an appeals court considers staying an import ban won by AbbVie Inc.’s Allergan that was to go into effect Tuesday.
Daewoong Pharmaceutical Co. and Evolus filed the request early Saturday, urging the US Court of Appeals for the Federal Circuit to put on hold on the ban against their treatment, Jeuveau. Allergan and its South Korean partner MedyTox Inc. in December won a ruling that Jeuveau is made using MedyTox’s secret process to turn the deadly botulinum toxin into a cosmetic product.
The import ban is “temporarily stayed and the government is directed not to enforce the remedial orders until further notice while the court considers the motion for a stay pending appeal,” the Federal Circuit said in an order posted on its electronic docket. The court ordered additional legal arguments could be submitted through March 5.
Evolus jumped as much as 7.6 percent after the temporary ruling and was trading up 2.5 percent at $7.87 at 9:46 a.m. in New York.
Daewoong and Evolus argue that the US International Trade Commission, which imposed the 21-month import ban, overstepped its authority by ruling that it could punish a company in the US for actions that occurred exclusively in another country.
Daewoong and MedyTox are embroiled in litigation in South Korea over whether Daewoong stole details of the process. MedyTox has no operations in the US and no product sold in the US. Allergan was involved in the case because it has a proposed product being developed with MedyTox, and Botox competes with Jeuveau.
While Daewoong and Evolus are appealing the ban, AbbVie and MedyTox argue it should be even longer. They are appealing the commission’s decision that MedyTox’s bacterial strain doesn’t qualify as a trade secret. The companies had sought a 10-year import ban on Jeuveau on that issue.
The cases are Allergan v. International Trade Commission, 21-1653, and Daewoong v. ITC, 21-1654, both U.S. Court of Appeals for the Federal Circuit (Washington). The ITC case is In the Matter of Certain Botulinum Toxin Products, 337-1145, U.S. International Trade Commission (Washington).
By Susan Decke.