Court rules against Abbott in glucose-testing case

SAN FRANCISCO Bayer AG has won a court ruling that states a patent used by Abbott Laboratories in glucose-testing products isn’t enforceable because a company attorney used misrepresentations to get the patent approved, according to published reports.

Lawrence Pope, formerly an attorney at Abbott Labs, acted with “specific intent to deceive” the patent examiner, U.S. District Judge William Alsup in San Francisco said in his ruling. Pope withheld information that would have hurt Abbott’s case, Alsup wrote in the 54-page ruling.

“Intent to deceive, not just withhold, was clearly in the mind of” Pope, the judge wrote. “If concealment of extrinsic information as close to the heart of the prosecution as was involved here is allowed to pass, then we would in effect be issuing licenses to deceive patent examiners in virtually all cases.”

Abbott first sued Bayer in 2005 claiming patent infringement seeking unspecified damage. Abbott claimed test strips in two Bayer glucose-testing products that are no longer on the market infringed three Abbott patents.

Abbott maintains the patent was “obtained lawfully,” and is weighing its legal options, said spokesman Scott Stoffel. “Abbott continues to believe that this patent is valid and enforceable and that the defendants’ products infringe.”