Overview
MMR Strategy Group’s Justin Anderson provided a rebuttal to a survey measuring patent infringement and consumer associations in a false and deceptive advertising case involving competing infant probiotics.
Case Facts: Evolve Biosystems, Inc. and Abbott Laboratories Probiotics for Infants
Probiotics are live microorganisms that, when consumed, restore or balance gut microbiota. They are good bacteria that keep your gut healthy. Individuals of all ages benefit from good gut health. Newborns, in particular, may benefit from consuming probiotics.
Researchers at the University of California, Davis discovered that supplementing breast milk with the bacteria Bifidobacterium infantis increased the presence of the bacteria, which is associated with a reduced risk of intestinal and immune problems. Based on the findings, UC Davis developed a probiotic supplement for infants, which is sold commercially as EVIVO by Evolve Biosystems, Inc. Abbott Laboratories developed its own infant probiotic formula, containing Bifidobacterium longum subsp. Infantiis b, and marketed it as Similac Probiotic Tri-Blend, part of its line of Similac infant formulas. The supplement was explicitly marketed for preterm infants in neonatal intensive care units (NICUs).
Evolve Biosystems and the University of California, Davis filed a patent infringement lawsuit, arguing that the Abbott Laboratories formulation infringed on their intellectual property. Evolve alleged that the Similac Tri-Blend product improperly uses patented probiotic formulations and methods developed through research from UC Davis. Abbott counterclaimed, alleging false advertising under the Lanham Act and state laws, and seeking a declaratory judgment of invalidity and non-enforceability as to several patents.
Survey Findings
In response to the false advertising allegations, Evolve retained a survey expert to conduct a survey measuring how medical professionals used Similac Probiotic Tri-Blend, and which product characteristics medical professionals associated with the product. Among other things, the survey asked medical professionals, “Based on information you may have seen or heard, which of the following characteristics, if any, are associated with Similac Probiotic Tri-Blend?” The key findings included:
- 5% of respondents associated “Multi-strain probiotic offers functional advantages over single-strain probiotics” with Tri-Blend.
- 5% associated the product with being “stable at room temperature.”
- 8% associated the product with having a “high-quality strain of B. infantis.”
Survey Rebuttal
Abbott Laboratories retained Dr. Anderson to rebut the Evolve survey. As to the survey’s measures about use, Dr. Anderson’s rebuttal report concluded that the survey did not measure the disputed use, asked vague and confusing questions, and used no control. As to the survey’s measures about association and influence, Dr. Anderson concluded that a survey that merely measures associations does not provide sufficient proof that advertising was deceptive. The report also concluded that the survey interviewed the wrong consumers, tested none of Abbott’s statements, used leading language, and did not use a control.
Deciding Factors
The court issued a summary judgment order in favor of Abbott Laboratories on the false advertising issues. It found that even if the Evolve survey were reliable and admissible, its evidence was irrelevant to false and misleading advertising claims. The court explained that the survey showed only that consumers associated Abbott’s product with specific attributes; this does not necessarily show the ads were deceptive or misleading. Because this was not adequate proof of the false advertising claims, the court ruled that Evolve failed to meet its burden of proof, granting summary judgment in favor of Abbott on the false advertising and related state-law unfair competition claims. (The court separately found for Abbott on the patent claims.)
Survey Takeaway
Consumer surveys can be persuasive to courts and regulators in the face of false advertising challenges–when they squarely address issues relevant to the litigation. Surveys must answer the right questions and measure the correct issues to be reliable and legally admissible. If you require survey research for false and deceptive advertising claims, contact MMR Strategy Group.