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14 March 2023BiotechnologyLiz Hockley

Abbott fails to stay claims in baby formula milk dispute

“Customer suit exception” is rejected by district judge | Suit between Chr. Hansen and Glycosyn is ongoing.

A US district judge has denied  Abbott Laboratories’ attempt to remove itself from a lawsuit over the alleged patent infringement of an ingredient used in baby formula milk.

The medical device company asked Massachusetts District Court to sever and stay the claim against it as a third-party defendant in the case between  Chr. Hansen and  Glycosyn. This was denied by the court last week (March 9).

Danish bioscience firm Chr. Hansen is seeking to prove that its methods of manufacturing a human milk sugar known as 2’-fucosyllactose (2’-FL), a key ingredient in infant milk formula, do not infringe a patent held by Glycosyn (US no. 9,970,018) and that the patent is invalid.

Abbott has partnered with both Glycosyn and Chr. Hansen at different times over the past 15 years, according to the court filing. Since 2016, the firm has bought 2’-FL from Chr. Hansen, but before that had confidentiality and then development agreements with Glycosyn. Glycosyn alleges that during this time, it revealed its process for making 2’-FL to Abbott.

End user

Litigation between Glycosyn and Chr. Hansen has been ongoing for five years, with Glycosyn accusing Chr. Hansen of infringement. Abbott is named as a third-party defendant in the current suit, but moved to remove itself on the grounds of the “customer suit exception” and traditional stay factors.

The “customer suit” exception aims to impose a trial on the “true defendant”—the manufacturer, rather than customer.

Abbott told the court that it was “a mere reseller of the 2’-FL that it bought from Chr. Hansen and neither manufactured nor modified the 2’-FL before incorporating it into its infant formula”.

It claims that because Chr. Hansen’s manufacturing process is accused in the case, the firm was “in a better position to defend it and is the ‘true defendant’”.

Glycosyn responded that Abbott “actively collaborates” with Chr. Hansen and possesses information relevant to Glycosyn’s patent infringement claims.

It is alleged that unlike a mere “end user”, Abbott “spent years developing methods of producing 2’-FL and compositions comprising 2’-FL for its use in infant formula”.

The court referred to the apparent partnership between Abbott and Chr. Hansen when rejecting Abbott’s request for a stay, and stating that “the customer suit exception is inapplicable to the unique factors of this case and is not a ground for staying it”.

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