Defendant's product is better so plaintiff couldn't show injury from false advertising

American Medical Systems, Inc. v. Biolitec, Inc., — F.Supp.2d —-, 2011 WL 1195889 (D. Mass.) I'm going to start by quoting the court's intro to the patent piece of this case, because I like it: This intricate and lavishly briefed piece of patent litigation turns on the proper construction of a single two-letter word: "on." One may say that a dictionary rests "on" a table but, if an apple is then placed on the dictionary, is it, too, "on" the table? In one sense it is; in another, it is not. Here, the patented product claims, as an essential feature, a transmitting surface located "on" the tip of a waveguide. The accused device discloses a transmitting surface located "on" a cap placed over the tip of the waveguide. For the reasons set forth below, this critical difference mandates a finding that, as a matter of law, Defendants' device does not infringe Plaintiffs' patent. The court will therefore allow Defendants' motion for summary judgment on most of Plaintiffs' complaint. AMS also filed a Lanham Act claim targeting a single graph that Biolitec used in a sales Powerpoint and brochure. AMS alleged that the graph, entitled "Penetration Depth," falsely portrayed their GreenLight system as having a dangerously high penetration depth and falsely attributed a low penetration depth to defendants' Evolve system. Biolitec contested falsity and argued that the relevant consumers, urologists, were too sophisticated to be swayed by one graph on a 21-slide presentation, or in a minor feature of a brochure, when making a major purchase of medical equipment. The court found that AMS failed to provide any evidence that it was injured by the alleged misrepresentation. Where there is literal falsity, courts presume deception, but plaintiffs must still show injury. Even if the court had adopted a presumption of injury from literal falsity (something the First Circuit hasn't done, and something on which courts vary-some apply it only to injunctive relief, others only to comparative advertising; puzzlingly, the court said this was a "hybrid" case because the slide mentioned two other competitors along with AMS, even though that's still comparative), which it declined to do, defendants "conclusively" rebutted the presumption with "overwhelming" evidence that doctors stopped buying AMS's product because they found it less effective than other products on the market, including Biolitec's product. According to that evidence, any lost sales were due directly to the comparative inferiority of AMS's product. AMS provided no evidence to counter the "powerful" testimony from urologists. Without evidence of any urologist who chose Biolitec's product over AMS's due to the graph, AMS failed to show injury.

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