The judge in Evolve BioSystems Inc.’s case against Abbott Laboratories denied a motion to dismiss the full complaint Monday. The claim, filed in the Northern District of Illinois Eastern Division, was originally filed for direct infringement, contributory infringement, and inducement regarding patents held by the Regents of the University of California and exclusively licensed to Evolve Biosystems Inc.
The patents, 8,197,872 and 9,200,091, were held for methods of producing and using synthetic food products to create conditions suitable for Bifidobacterium longum subsp. infantis (“B. infantis”), a strain of beneficial bacteria (probiotic) vital to infant gut health. The original researchers who discovered the necessary process founded Evolve Biosystems and were the exclusive licensees of this product, the order explained. Abbott, a competing producer of food products for direct hospital and commercial use, directly competes against Evolve Biosystems in this market, and both companies were briefly involved in possible cross-promotion plans which broke down upon the discovery of the competing and infringing products.
Abbott moved to dismiss the case, claiming that the three counts did not allege sufficient facts to support the claims. However, the court denied this motion, indicating that Abbott incorrectly stated the burden of proof required at this stage of the proceeding. Unlike a later summary judgment motion, which comes after preliminary discovery, the standard the court indicated was the one promulgated by Twombly, where a pleading is sufficient if there are sufficient facts pled to put the opposing party on notice.
Abbot also indicated that the claims should be dismissed because the plaintiff failed to allege the lack of substantial non-infringing use for the competing products. The court also denied this portion of the motion, stating that all cases that Abbott cited to were from later in the case process, where evidence had been entered showing substantial noninfringing use of the other product. In the case at hand, the claims had sufficient detail to put the defendant on notice of the potential action, as well as to indicate the source of the plaintiff’s belief that there was no substantial non infringing use.
Plaintiffs Evolve Biosystems and Regents of the University of California are being represented by Morrison & Foerster. The defendants are being represented by Winston & Strawn.
