damages requirement trips up another false advertising case with sophisticated customers

Agilent Technologies, Inc. v. Axion Biosystems, Inc., 2026 WL 734986, No. 23-198-CJB (D. Del. Mar. 12, 2026)

Agilent alleged patent infringement and false advertising by Axion in the advertising of its impedance-based cell assay products. E.g., “The simple and sensitive assays of the Maestro Z accurately measure tumor growth and immune cell killing of 3D cancer spheroid models.” Agilent contended that the Maestro Z platform doesn’t actually accurately measure the impedance of 3D spheroids, but only of cells in contact with electrodes on a 2D surface. 

The court granted Axion’s summary judgment motion. Even assuming a genuine dispute on literal falsity and on whether the statements were fact, not opinion, Axion still prevailed.

“For a false advertising claim seeking injunctive relief, if a plaintiff can prove the statement in question is unambiguous and literally false—then actual deception or a tendency to deceive is presumed and need not be proven.” However, “where a plaintiff seeks only money damages for a Lanham Act violation”—regardless of whether the plaintiff is asserting that the statements are literally false or simply misleading—then “plaintiff must present proof of actual deception.” Axion sought both an injunction and money damages; for the injunction, actual deception could be presumed.

But there was not enough evidence of actual deception for misleadingness or damages. A consumer survey or other customer testimony “is not absolutely required if other evidence of actual customer deception exists.” Agilent’s own corporate representative testified about the purported experience of a prospective customer, but this was double hearsay, not admissible at trial. [Agilent apparently didn’t respond that this was evidence of state of mind subject to an exception.] She “could not recall [any] specific case” of customers saying that they wanted the feature at issue. “This vague testimony amounts to a conclusory assertion backed by no actual facts on the key point in dispute.” Nor did the court’s reading of the record support the idea that “Axion’s own collaborators, … who Axion stated are ‘representative of an Axion customer,’ were deceived.” Given their extensive experience with the products, “whatever views they came to regarding Axion’s products and their capabilities were surely gleaned from their own extensive research efforts.”

Thus, claims requiring actual deception failed. The remaining claim (literal falsity/injunctive relief) failed for want of a showing of injury.  

Agilent’s damages theory wasn’t based on any lost sales or reputational damage, and instead focused solely on prospective corrective advertising costs. The Third Circuit “does not place upon the plaintiff a burden of proving detailed individualization of loss of sales” as “[s]uch proof goes to quantum of damages and not to the very right to recover.” And the parties compete directly. Still, there was no real evidence of harm: the testimony was “so vague, conclusory, and/or inadmissible that it cannot be good evidence of anything.” [Now do trademark infringement!]