A Morrison & Foerster intellectual property litigation team earned a major victory for Evolve Biosystems, Inc. in its patent infringement suit against Abbott Laboratories, the maker of infant formula Similac.
Evolve, which manufactures Evivo, the first probiotic clinincally proven to restore the infant gut microbiome, filed against Abbott in August 2019 over a rival infant formula probiotic product, Similac Probiotic Tri-Blend. Abbott responded by filing false advertising counterclaims in November 2020, and Evolve filed similar counterclaims in February 2021, which Abbott sought to dismiss, arguing that phrases on its Similac product couldn’t be considered significantly misleading since they were “vague, unactionable ‘claim[s] of superiority.’”
On March 22, U.S. District Judge John Z. Lee said in an opinion that Evolve’s false advertising and unfair competition allegations against Abbott are sufficient enough to support its claim that Abbott’s product label “constitutes commercial advertising or promotion,” denying Abbott’s motion to dismiss.
“Consumers could plausibly understand Abbott’s statements as conveying a factual, testable information and reasonably rely on them in making purchasing decisions,” Judge Lee said in his opinion, adding that “it is a small step to infer that customers of infant probiotic products rely on such commercial language as ‘poten[t],’ ‘stabl[e],’ and ‘high-quality’ to denote the products’ function and efficacy.”
The MoFo intellectual property team advising Evolve on the matter is led by San Francisco partner Matthew Chivvis and of counsel Parisa Jorjani, and Palo Alto associate James Hancock.