Boston Scientific files cross-appeal in stent patents suit against Johnson & Johnson

March 5, 2010 by MassDevice staff

Johnson & Johnson isn't the only party appealing a Delaware judge's ruling that four of its patents are invalid, as Boston Scientific Corp. cross-appeals despite winning the case's last round.

Boston Scientific Corp. (NYSE:BSX) may have won the most recent round in its stent patents war with Johnson & Johnson (NYSE:JNJ), but that didn't stop the Natick, Mass.-based devices giant from cross-appealing a Delaware judge's ruling.

The patents in question are at the heart of complicated legal wrangling involving Boston Scientific, its New Brunswick, N.J.-based rival and competitor/partner Abbott (NYSE:ABT). The dispute centers around Boston Scientific's Promus stent, a private-label version of Abbott's Xience V stent, and the JNJ subsidiary Cordis Corp.'s Cypher.

BSX had asked Judge Susan Robinson of the U.S. District Court for Delaware to rule the four patents invalid on various grounds; JNJ wanted Robinson to declare infringement of a single claim contained in one of the patents, according to court documents. Robinson ruled in favor of one Boston Scientific claim, that J&J's patent covering the sirolimus (also called rapamycin) used in Cordis's Cypher stent doesn't cover the everolimus drug BSX uses in the Promus device. Everolimus is made by modifying the sirolimus molecule at a single location.

Robinson also found that the fourth patent wasn't specific enough in describing exactly which drug formulations it covered to be valid, because the patent didn't include a written description of at least one example of such a formulation. Johnson & Johnson appealed the ruling last month.

And despite its apparent desire to lay the expensive legal wrangling over stent patents to rest, Boston Scientific filed a cross-appeal of Robinson's rulings, hoping the U.S. Court of Appeals for the Federal Circuit will overturn "all underlying opinions, orders, and rulings adverse" to the company, according to court documents. Robinson had denied three of the four invalidity claims the company pressed in the suit.

Boston Scientific and new CEO Ray Elliott have looked to put other stent battles behind them, agreeing to pay Cordis $716 million in September 2009 to settle 14 stent patent infringement suits and in February inking another, $1.725 billion settlement involving a quartet of other cases dating back to 2003.