Cordis Corp., the stent-making arm of Johnson & Johnson (NYSE:JNJ), lost its legal challenge to a pair of U.S. Patent & Trademark Office rules because it filed the lawsuit too late, according to a ruling by a federal judge in Virginia.
Cordis filed the suit in early February 2011, seeking to overturn two USPTO rules instituted in 2004 that it claimed interfered with its ability to subpoena witnesses during patent proceedings. But because the statute of limitations for suing the government is six years, Judge Gerald Lee of the U.S. District Court for Eastern Virginia granted the defendants’ motion to dismiss the case.
"Here, the applicable six-year statute of limitations began to run when the PTO promulgated the challenged rules on August 12, 2004, with an effective date of September 13, 2004," Lee wrote. "Plaintiff filed its complaint on February 4, 2011, which is after the expiration of the six-year statute of limitations."
Sign up to get our free newsletters delivered right to your inbox
"The court rejects plaintiff’s argument that the cause of action did not accrue until its patents were submitted for reexamination. Plaintiff challenges challenges the validity of the regulations on their face, not as they were applied," he wrote. "Therefore, because plaintiff challenges the facial validity of the regulations, the present action accrued when the regulations were promulgated and is now barred by the six-year statute of limitations."
Cordis had asked Lee to invalidate the rules, arguing that they barred it from access to evidence it needs for the re-evaluation of its portfolio of stent patents. Abbott Laboratories (NYSE:ABT) joined the suit as intervenor-defendant, opposing the Cordis bid, after the complaint was originally filed.
Read more about the Stent Wars on MassDevice.com
It’s not the only legal war Cordis has lost this year – including the year’s largest patent infringement award, a million loss to stents pioneer Dr. Bruce Saffran that a judge later added $111 million to. In May came a $20 million loss to arch-rival Boston Scientific Corp. (NYSE:BSX) in a patent infringement dispute; in June came a $22 million loss, upheld on appeal, to Spectranetics Corp. (NSDQ:SPNC).