IPO recently published its list of 2007's 300 most prolific patentees.* Chicago-area companies had a large presence on the list. Here they are, along with each entity's rank on the list:
* Hat tip to Patent Docs for identifying the IPO's list.
| 28 | Motorola (631 patents) |
| 47 | Boeing (428) |
| 82 | ITW (259) |
| 289 | Abbott (54) |
Brian Higgins's Maryland IP Law Blog post about the progeny of In re Seagate, 497 F.3d 1360 (Fed. Cir. 2007), inspired me to do follow up posts identifying Northern District cases discussing recent major IP decisions -- click here for my post on injunctions after eBay Inc. v. MercExchange, L.L.C., 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). There have been a number of obviousness decisions in the Northern District since KSR Int’l Co. v. Teleflex Inc., __ U.S. __, 127 S.Ct. 1727 (2007). Here they are:*
Lexion Medical, LLC v. Northgate Techs., Inc., No. 04 C 5705, Slip Op. (N.D. Ill. Jun. 8, 2007). -- Holding that the pre-KSR jury's decision would not have changed if given a KSR obviousness instruction.
These opinions suggest that KSR is not changing obviousness law in the Northern District much. I suspect that is not true. Once we have a larger sample of cases, including more where the initial analysis was not done pre-KSR, we will see more patents held invalid based upon obviousness.
* A brief note on methodology: this was not a thorough study and does not include cases that granted or denied injunctions without discussion. For a more complete list of post-KSR decisions nationwide, go to the Fire of Genius.
Brian Higgins at the Maryland IP Law Blog posted an analysis of significant willfulness decisions post-In re Seagate, 497 F.3d 1360 (Fed. Cir. 2007) -- click here for the post and click here for a subsequent post discussing Se-Kure Controls, Inc. v. Diam USA, Inc., No. 06 C 4857, 2008 WL 169029 (N.D. Ill. Jan. 17, 2008) (Cox, Mag. J.). Of the eleven decisions Higgins identified, three were Northern District decisions and one was a Federal Circuit decision analyzing a Northern District case. Here are my posts on the Northern District decisions:
As you can infer from the relatively small number of cases identified by Higgins, there remains a lot of law to be written about Seagate before the standard is well settled. I suspect that within 18-24 months there will be a relatively large body of law, including numerous Federal Circuit decisions exploring the new standard's outlines. Until then, patent litigants will face a degree of uncertainty regarding willfulness. Of course, defendants will generally be glad to have some uncertainty in exchange for plaintiffs's higher willfulness hurdle.
Abbott Labs. v. Sandoz, Inc., No. 05 C 5373, 2007 WL 4287503 (N.D. Ill. Dec. 4, 2007) (Coar, J.).*
Judge Coar granted defendant Sandoz’s Fed. R. Civ. P. 12(b)(6) motion to dismiss or in the alternative Fed. R. Civ. P. 12(c) motion for judgment on the pleadings, dismissing plaintiff Abbott’s willfulness claims Abbott alleged that Sandoz willfully infringed Abbott’s patent related to an extended release antibiotic (clarithromycin, an erythromycin derivative which Abbott markets as Biaxin XL). At the time Sandoz entered the market with its generic version of Biaxin XL, the Federal Circuit had issued an opinion based upon an interlocutory appeal of a temporary restraining order, which included statements that Abbott’s patent was susceptible to invalidity and unenforceability argument. The Court held that Sandoz’s reliance on that opinion, regardless of the limited record it was based upon or its non-final nature was objectively reasonable, well above the In re Seagate objective recklessness standard.
* Click here for more on this case and related cases.
Abbott Labs. v. Sandoz, Inc., No. 05 C 5373, 2007 WL 4287501 (N.D. Ill. Dec. 4, 2007) (Coar, J.).*
Judge Coar construed the claims of plaintiff Abbott’s patent related to an extended release antibiotic (clarithromycin, an erythromycin derivative which Abbott markets as Biaxin XL), denied defendant Sandoz’s motion for summary judgment of noninfringement and granted Abbott summary judgment regarding anticipation, obviousness and inequitable conduct. Of particular interest, the Court held that the use of Markush group language – “selected from the group consisting of” – in the specification did not necessarily limit the construction of claim terms. The Court also noted that materiality of a reference in an inequitable conduct analysis was determined from the perspective of a reasonable examiner, not the patentee.
* Click here for more on this case and related cases.
Abbott Labs. V. Church & Dwight, Inc., No. 07 C 3428, 2007 WL 3120007 (N.D. Ill. Oct. 23, 2007) (Kennelly, J.).
Judge Kennelly denied defendant Church & Dwight’s (“C&D”) 28 U.S.C. Section 1404(a) motion to transfer this patent case to the District of New Jersey, where a related case between the parties was pending, and granted C&D’s motion to dismiss a claim that the New Jersey Court previously dismissed for lack of standing. In New Jersey, C&D sued plaintiff Abbott Laboratories (“Abbott”) alleging infringement of patents covering lateral flow immunology devices, and pregnancy and ovulation testing methods. Abbott counterclaimed alleging infringement of three patents, including U.S. Patent No. 6,534,320 (the “’320 patent”). The New Jersey Court ultimately dismissed Abbott’s counterclaim, holding that Abbott was a nonexclusive licensee of the ‘320 patent and, therefore, lacked standing. The New Jersey Court also held that standing could not be cured by Abbott’s effort to involuntarily join its licensor Inverness pursuant to Fed. R. Civ. P. 19. Based upon the New Jersey Court’s ruling, this Court held that issue preclusion prevented Abbott from re-litigating its standing to sue. Unless Abbott revised its license agreement with Inverness, giving Abbott additional rights, the New Jersey Court’s ruling was preclusive. The Court, therefore, dismissed Abbott’s ‘320 patent infringement claim.
The Court denied C&D’s motion to transfer the case to New Jersey. The Court gave Abbott’s choice of forum deference. And the Court gave little weight to the parties’ ongoing New Jersey patent suit because the New Jersey Court dismissed Abbott’s counterclaims before making any substantive rulings. The New Jersey Court, therefore, would not have been in a better position to decide any issues in the case.
Abbott Labs v. Baxter Healthcare Corp., No. 04 C 0836, 2007 WL 2875503 (N.D. Ill. Sep. 28, 2004) (Guzman, J.).
Judge Guzman granted plaintiff Abbott Laboratories’ (“Abbott”) Fed. R. Civ. P. 15(a) motion to amend its Complaint dismissing claims regarding its U.S. Patent No. 6,444,859 (the “’859 patent”). After the Federal Circuit held the parent of the ‘859 patent invalid, Abbott Labs v. Baxter Pharm. Prods., 471 F.3d 1363 (Fed. Cir. 2006), Abbott gave defendant Baxter Healthcare (“Baxter”) a covenant not to sue Baxter on the ‘859 patent (“Covenant”). Abbott, therefore, sought leave to dismiss its claims regarding the ‘859 patent. But Baxter argued that the claims should not be dismissed because the Covenant excluded any reissue or reexamination of the ‘859 patent, thereby creating an actual controversy. The Court held that Abbott’s potential suit based upon its potential reissue or reexam of the ‘859 patent did not create a current controversy. The Court, therefore, allowed Abbott to amend its Complaint dismissing claims regarding the ‘859 patent.
Abbott Laboratories and Andrx Pharmaceuticals have settled their Northern District patent litigation over Andrx's efforts to sell a generic version of Abbott's extended release antibiotic Biaxin XL, Case No.05 C 1490 (discussed at length in the Blog's archives). According to IP Law360 (subscription required), the settlement includes an agreement that Andrx will not market a generic version of Biaxin XL for, presumably, the remainder of Abbott's patent term.
Abbott Labs. v. Sandoz, Inc., No. 05 C 5373, 2007 WL 1549498 (N.D. Ill. May 24, 2007) (Coar, J.).
Judge Coar denied defendant Sandoz, Inc.'s ("Sandoz") motion to stay the Court's preliminary injunction pending appeal to the Federal Circuit pursuant to Fed. R. Civ. P. 62(c). The Court previously granted plaintiff Abbott's motion for a preliminary injunction (you can read more about that decision and related cases in the Blog's archives). The PI enjoined defendant Sandoz from selling a generic version of Abbott's patented extended release antibiotic (clarithromycin, an erythromycin derivative which Abbott markets as Biaxin XL). Sandoz argued that the PI should be stayed pending appeal because of conflicting Federal Circuit law regarding the Court's claim construction and because of the Supreme Court's KSR decision.
First, Sandoz argued that two different Federal Circuit panels had issued differing rulings construing the claims at issue. Judge Coar rejected this argument because the construction relied upon in the PI ruling was the Federal Circuit's second, broader claim construction. The Court explained that the "only rational assumption" was that the second panel was aware of the constructions in the first, but relied upon something different in the record or identified a fact missed by the first panel. Further, the Court predicted that the Federal Circuit would not retreat from its second opinion to its first, prior opinion.
Second, the Court held that the KSR decision did not change its analysis of Sandoz's likelihood of success on its obviousness argument. The Court provided a detailed explanation of KSR and its reasoning, but differentiated the current case because the Court held that one of the limitations in the Abbott claims did not exist in Sandoz's cited combination of prior art references. Because the references did not disclose one of the elements of the claims, whether or not the Court used a strict application of the Federal Circuit's teaching, suggestion or motivation test did not change the outcome of its analysis. Both the Federal Circuit's and the Supreme Court's standards required that all elements be disclosed by the combined prior art references.
Finally, the Court held that Sandoz had not provided sufficient evidence that it would be irreparably harmed. Sandoz argued that if it could not enter the market at the same time as other generics, which are not subject to PI's, pharmacists would be reluctant to later restock their shelves with Sandoz's generic version of the drug. But the Court reasoned that the lure of generics is their prices, not their brand recognition, so Sandoz should have no trouble re-entering the market at a later date should it prevail.
Am. Hardware Manufs. Assoc. v. Reed Elsevier Inc., No. 03 C 9421, 2007 WL 1521185 (N.D. Ill. May 14, 2007) (Moran, J.).
Judge Moran denied in part plaintiff's motion to strike defendants' confidentiality designations regarding the deposition of defendants' former CEO. Defendants designated as "Highly Confidential," among other portions of the deposition, those portions in which one of defendants' customer contracts (the "Contract") was discussed. Defendants argued that the terms of the Contract were trade secrets and, therefore, should be given the strongest confidentiality protection available pursuant to the parties' Protective Order. Magistrate Judge Mason previously reviewed the designation, held that the Contract was not likely trade secret and reduced the related designations to "Confidential." Judge Moran agreed with Judge Mason, rejecting the argument that the Contract was a trade secret as "conclusory and vague." And Judge Moran agreed that the Contract warranted a "Confidential" designation. Judge Moran also explained that while the deposition and related documents would be protected by the Protective Order during discovery, they would not when the Court ruled on dispositive motion or held trial, quoting the Seventh Circuit:
"Secrecy is fine at the discovery stage, before the material enters the judicial record" those documents that "influence or underpin the judicial decision are open to public inspection unless they meet the definition of trade secrets or other categories of bona fide long-term confidentiality." Baxter Int'l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002). Thus, at the summary judgment, trial or appellate stage, documents that have previously been deemed confidential may not retain such a designation. See Little v. Mitsubishi Motor Mfg. of Am. Inc., 2006 WL 1554317, at *3 (C.D. Ill. 2006).
Abbott Labs. v. Sandoz, Inc., No. 07 C 1721, Slip op. (N.D. Ill. May 3, 2007) (Anderson, J.).
Judge Anderson denied plaintiffs' motion for a preliminary injunction to prevent defendants Sandoz, Inc. ("Sandoz") and Teva Pharmaceutical Industries, Ltd. ("Teva") from selling a generic version of plaintiff Abbott Laboratories' ("Abbott") antibiotic cefdinir, which it markets using the name Omnicef. Plaintiffs' original patent, U.S. Patent No. 4,559,334 (the "'334 patent"), covering a form of cefdinir expired on Sunday, May 6, 2007 at 10:59 p.m. CDT. Plaintiffs' second patent, U.S. Patent No. 4,935,507 (the "'507 patent"), covering a crystalline cefdinir, does not expire until December 4, 2011. Plaintiffs argued that Sandoz's and Teva's respective formulations of cefdinir (the "accused products"), which the parties agree can be classified as cefdinir monohydrate, infringed the '507 patent and, therefore, sales of the accused products should be enjoined. The Court, with agreement of the parties, adopted a prior claim construction from Judge Payne of the E.D. Virginia for purposes of the PI determination. Using Judge Payne's construction, the Court held that the accused products did not likely infringe the '507 patent. First, cefdinir monohydrate only displayed four of the seven peaks in an x-ray diffraction pattern that the '507 patent identified as indicative of crystalline cefdinir within the +/-.1 degree margin of error that the Court determined was the proper construction of the '507 patent's "about" qualifier. Second, the Court held that "trace" amounts of crystalline cefdinir that were allegedly in the accused products in addition to the cefdinir monohydrate did not likely amount to literal infringement.
The Court also held that plaintiffs had not shown a likelihood of proving infringement pursuant to the doctrine of equivalents. First, the Court discounted plaintiffs' expert's allegation of equivalents because he did not support his opinions with "empirical or substantive evidence." Second, the Court denied plaintiffs' argument that Sandoz's and Teva's statements that the accused products were bioequivalent to crystalline cefdinir in their ANDAs was proof of infringement. The court noted that if bioequivalency were infringement, there could never be generics during a patent's life.
Because Sandoz's ANDA was previously approved by the U.S. Food & Drug Administration (the "FDA"), the Court's ruling meant that Sandoz was free to sell its generic beginning Sunday, May 6 at 11:00 p.m. CDT. Teva's ANDA had not been approved, however, so it must wait until the FDA acts upon its ANDA. You can find the Chicago Tribune's brief coverage of the decision in last weekend's Midwest Briefs.
Abbott Labs. v. Sandoz, Inc., No. 05 C 5373, 2006 WL 1141635 (N.D. Ill. Apr. 16, 2007) (Coar, J.).
Judge Coar granted plaintiff Abbott's motion for a preliminary injunction, after having previously denied it a TRO.* The PI enjoined defendant Sandoz from selling a generic version of Abbott's patented extended release antibiotic (clarithromycin, an erythromycin derivative which Abbott markets as Biaxin XL). The Court held that Sandoz had shown a substantial likelihood of materiality and Abbott's intent to deceive the PTO based upon Abbott's failure to disclose certain taste perversion data during prosecution. But because Abbott abandoned the claims to which the taste perversion data was relevant of its own accord, the Court did not find the patent preliminarily unenforceable. The Court explained its reasoning as follows:
Redemption is one of the core principles of the American ethos. Thus in addition to being contrary to the spirit of Scribbs, Kimberly-Clark and the Code of Federal Regulation, it seems wholly inequitable to hold a patent to be invalid for fraudulent conduct in the prosecution of a claim that was withdrawn before actual prosecution had even begun.
The Court then made detailed, initial claim construction rulings and, based upon them, found a substantial likelihood of infringement. The Court also considered Sandoz's invalidity arguments, but held that Sandoz had not proved a likelihood of success regarding its invalidity arguments. The Court also held that the balance of hardships tipped in Abbott's favor because allowing Sandoz's generic product to remain in the market would necessarily take market share from Abbott.
In addition to its preliminary injunction stopping future product sales, the Court also required that Sandoz recall all of its existing product, so long as an adequate bond was set.
* You can read more about the Federal Circuit decision in which the Federal Circuit overturned the Court's grant of a PI in a related case in the Blog's archives. You can also read another take on this case at the Orange Book Blog.
Abbott Labs. v. Mylan Pharms., Inc., No. 05 C 6561, 2007 WL 625496 (N.D. Ill. Feb. 23, 2007) (Kendall, J.).
Judge Kendall denied plaintiff's, Abbott, Fed. R. Civ. P. 12(b)(6) motion to dismiss defendant's, Mylan, antitrust counterclaims. Mylan alleged that two Abbott employees submitted declarations and/or testimony stating the weight and structure of certain oligomers related to the patented invention, despite their knowledge that the tests they relied upon were known to be incapable of measuring the oligomers at issue. Mylan further alleged that based upon these fraudulent statements, the USPTO issued certain of the patents-in-suit which then prevented Mylan from entering the market with a generic version of Abbott's pharmaceutical Depakote. Abbott relied upon a prior Northern District ruling against third party Torpharm which held that Abbott's conduct before the USPTO was not inequitable. But the Court held that while that ruling prevented a sham litigation claim, it did not estop Mylan's inequitable conduct allegations because Mylan was not a party to the prior case and, therefore, had no opportunity to present its evidence and argument. Additionally, the Court held that Mylan adequately alleged antitrust injury by stating that it prepared to enter the market with generic Depakote, but was prevented from doing so by Abbott's alleged inequitable conduct.
Abbott Labs. v. Andrx Pharms., Inc., No. 05 C 1490, 2007 WL 551551 (N.D. Ill. Feb. 20, 2007) (Brown, Mag. J.).*
The Court denied defendant's motion to compel production of attorney-client privileged documents pursuant to the crime-fraud exception. Defendant argued that plaintiff's failure to disclose full results from two studies with conflicting results (for and against the applications' claims) to the USPTO, both of which were material to the claims, was both inequitable conduct and fraud. The studies were conducted during the pendency of one application and prior to two others. Additionally, three of the named inventors co-authored a journal article detailing the results. And during her deposition, prosecution counsel admitted being aware of the studies during prosecution of the applications. The Court held that the evidence warranted in camera review of selected documents from plaintiff's privilege log to determine whether there was evidence of intent. But after its review, the Court found no direct evidence of intent to defraud the USPTO. The Court noted that "[n]one of the documents . . . contained a 'smoking gun' or anything close to it." Furthermore, while intent can be inferred based upon circumstantial evidence, there most be more evidence than failure to disclose to support the inference.
* You can see more on this case, in particular, various preliminary injunction opinions here and here.
On the front page of yesterday's Business section, the Tribune ran a story about pharmaceutial companies developing combination drugs - Combo Pills Perk Up Firms' Profits. The combination pills, for example a pill containing medicine to treat both high cholesterol and high blood pressure, have dual advantages: 1) patients are required to take fewer pills and the fewer the number of pills a person must take, the more likely they are to take all of their pills; and 2) patents are likely available on the combined drugs, extending patent protection. The Tribune reported that dozens of combination pills are likely being developed, including in areas such as heart disease, asthma and depression. For example, the article reports that Abbott Labs and AstraZeneca announced plans last year to combine their two popular cholesterol drugs, Tricor and Crestor respectively, into a single pill to lower cardiovascular disease risk (the #1 killer according to the article).
Another advantage to the combo pills is that development costs are substantially reduced because the component medicines have already been thoroughly developed and tested. The lower entry costs allow small pharmaceutical companies like BrianT Laboratories of Lake Forest to enter the market. BrianT is working on combining hypertension and cholesterol fighting drugs.
Abbott Labs. v. Andrx Pharm., Inc., No. 06-1101, __ F.3d __ (Fed. Cir. 2007).
While this is not a Northern District case, it is relevant to the Blog because it is an appeal of a Northern District case and because it confirms Judge Coar's ruling (discussed here) that a preliminary injunction holding lacked preclusive effect in the related case Abbott Labs. v. Sandoz, Inc., No. 05 C 5373, 2006 WL 3718025 (N.D. Ill. Dec. 15, 2006). In this patent dispute plaintiff, Abbott Laboratories ("Abbott"), alleged that defendant's, Andrx Pharmacueticals ("Andrx") sale of a generic form of Abbott's patented extended release antibiotic (clarithromycin, an erythromycin derivative) which Abbott markets as Biaxin XL. The Northern District held that Abbott had established a likelihood of success on the merits of its infringement claim and that Andrx had not established a likelihood that the patent would be held invalid. As a result of those holdings, the Northern District issued a preliminary injunction. In its appeal, Andrx argued that Abbott was precluded from obtaining a preliminary injunction because the Federal Circuit overturned a previous Northern District preliminary injunction for Abbott against another generic antibiotic producer Teva Pharmaceuticals ("Teva"). In that case, the Federal Circuit held that Teva raised a substantial question as to the validity of the claims at issue, sufficient to call Abbott's likelihood of success on the merits into question.
The Federal Circuit, applying Seventh Circuit law, held that preliminary injunctions would be given preclusive effect only in the "rare instances" that the injunction raised an "insuperable obstacle" to plaintiff's success on the merits. Because the Court did not find an insuperable obstacle to Abbott's success on the merits, the denial of a preliminary injunction against Teva had no preclusive effect in this case. As a result, the Federal Circuit upheld the Northern District's preliminary injunction.
The Federal Circuit's reasoning appears to square with Judge Coar's reasoning in the Sandoz case. In Sandoz, the Court held that preliminary relief holdings have no preclusive effect because they are made on an incomplete record, "inherently tentative" and based upon only "an estimate of the likelihood of success." Despite the fact that the Federal Circuit's denial of the preliminary injunction lacked preclusive effect, however, the Court ultimately refused to reach a holding inconsistent with the Federal Circuit's without a "substantial showing" on a more complete record. So, although the Court denied the TRO, it appeared to remain open to a preliminary injunction based upon a more complete record.
You can find more on the Federal Circuit's Andrx case at Patently-O and the Patent Docs.
Abbott Labs. v. Sandoz, Inc., No. 05 C 5373, 2006 WL 3718025 (N.D. Ill. Dec. 15, 2006) (Coar, J.).
Judge Coar denied plaintiff's, Abbott Laboratories ("Abbott"), motion for a temporary restraining order ("TRO") to prevent defendant, Sandoz, Inc. ("Sandoz"), from selling a generic version of Abbott's patented extended release antibiotic (clarithromycin, an erythromycin derivative which Abbott markets as Biaxin XL). The Court had entered a TRO and, ultimately, a preliminary injunction preventing another party, Teva Pharmaceuticals ("Teva"), from selling a generic version of plaintiff's patented extended release antibiotic, but the Federal Circuit vacated the preliminary injunction. The Federal Circuit held that Teva raised a substantial question as to the validity of the claims at issue, sufficient to call Abbott's likelihood of success on the merits into question.
In the instant case, Sandoz argued that the Federal Circuit's prior ruling that there was a question regarding the validity of the claims-at-issue precluded any preliminary injunctive relief. The Court held that rulings on preliminary relief have no preclusive effect because they are made on an incomplete record, "inherently tentative" and based upon only "an estimate of the likelihood of success." Despite that ruling, however, the Court noted that "the practical effect of [the Federal Circuit's] holding still militates towards the denial of the TRO in the instant case." The Court refused to reach a holding inconsistent with the Federal Circuit's without a "substantial showing" on a more complete record. So, although the Court denied the TRO, it appears to have kept an open mind about a preliminary injunction based upon a more complete record.
*For another take on this case, check out the Orange Book Blog.
Abbott Labs. V. Andrx Pharm., Inc., No. 05 C 1490, 2006 WL 2092377 (N.D. Ill. July 25, 2006) (Brown, Mag. J.).
Using nonprivileged documents that are connected to privileged documents, such as fax coversheets or cover emails used to send a privileged report, to question a witness regarding the related privileged documents can waive the privilege. Applying Seventh Circuit law (the privilege questions at issue are unrelated to substantive patent law, so Federal Circuit law does not apply), the Court held that plaintiff Abbott waived privilege with respect to an entire document where: 1) Abbott produced a fax coversheet from a document over which it had claimed attorney-client and work product privilege; and 2) used that cover sheet in a line of questioning regarding the underlying document, despite Abbott’s decision not to produce the underlying document.
There are several useful practice tips to draw from this case. First: fax cover sheets that do not contain separately privileged information are generally not privileged themselves. Of course, there are exceptions and nuances to this general rule, but I suspect that many litigators claim privilege over coversheets that have no more information on them than what must be included in the privilege log anyway. In this case, the remainder of the fax was a marked-up copy of a patent application at issue in the case, but the cover sheet made no mention of the substance or title of the included document and, therefore, the cover sheet itself was not privileged.
At the beginning of my career a wise attorney -- David Callahan of Kirkland & Ellis -- told me that privilege logs should be reviewed by at least two attorneys before they are finalized. He also drilled into me that you should never simply push the task of logging privileged documents to the youngest associate on a case. Privilege decisions are complicated and the ramifications from privilege log mistakes can be very serious. As the youngest associate on all of my cases at the time, I was thrilled by his sage advice, and I have become more convinced of it over time.
The final practice tip: you must make all of your arguments. Attorneys tend to focus their arguments only on either the attorney-client privilege or the work product privilege, excluding the other. In this case, Abbott alleged that the document was protected by both work product and attorney-client privilege, but did not bother proving that the document was work product. The Court noted that waiver of attorney-client privilege does not automatically waive work product protection, and did not address work product protection because Abbott had not made its case as to work product.
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