U.S. District Judge John Z. Lee said that Evolve BioSystems Inc.’s false advertising and unfair competition counterclaims against Abbott, over the latter’s allegedly overhyped rival infant probiotic, cleared the court’s “low bar.” Judge Lee’s ruling allows Evolve to keep counterclaims it added to a patent infringement lawsuit over ingredients in Evolve’s competing product. Abbott’s Similac is similar to Evolve’s Evivo, which is promoted to help preterm infants metabolize milk.

Related: Baby Formula Lawsuits filed against Similac, Enfamil Makers

Judge Lee ruled that Abbott’s label and commercial statement for Similac Probiotic Tri-Blend are “sufficient facts to support” Evolve’s counterclaims that Abbott misled consumers about the competing product. Those counterclaims allege Abbott infringes patents covering Evivo by claiming an unsubstantiated number of gut-improving bacteria.

Judge Lee said: “Consumers could plausibly understand Abbott’s statements as conveying a factual, testable information and reasonably rely upon them in making purchasing decisions.”

Claims were more than “mere puffery”

A lawyer for Evolve told Law360: “[T]he court’s ruling confirms that defendant’s unsupported claims of product superiority do not qualify as mere puffery and that they can support causes of action for false advertising.”

Evolve filed a lawsuit against Abbott in August 2019, claiming Similac probiotic infringed a patent for its competing product designed to aid a premie baby’s digestion. Evolve says the patent is exclusively licensed to Evolve by the Regents of the University of California.

Evolve amended the lawsuit in October 2019, then added a second patent that is also licensed out by the University of California.

Judge Lee refused to let Abbott escape the lawsuit in November 2020, finding the company was “closely following” the patented technology.

Abbott filed counterclaims against Evolve in a sealed motion

Then, in a sealed motion, Abbott filed false advertising counterclaims against Evolve, which responded in February 2021 with similar counterclaims.

Next, in May 2022, Abbott sought to dismiss Evolve’s counterclaims, arguing that phrases on its Similac product, including “unique blend” and “potent,” couldn’t be considered significantly misleading since they were “vague, unactionable ‘claim[s] of superiority.'”

However, Judge Lee said in his latest order that although “vague, highly subjective or exaggerated commercial statements or advertisements may be deemed puffery,” the court must nevertheless take all of the information into account and analyze the context of its presentation.

“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,” said Judge Lee.

The patents at play-in-the suit are U.S. Patent Nos. 8,197,872 and 9,200,091.

The case is Evolve BioSystems Inc. et al. v. Abbott Laboratories, case number 1:19-cv-05859, in the U.S. District Court for the Northern District of Illinois.

Abbott is also being sued in civil courts over Similac by parents whose premature infants are alleged to have suffered necrotizing enterocolitis after ingesting Similac.

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by Matthews & Associates