Cordis does not use any heat to bond metal to polymer in its Cypher stents and that’s more than cool with a federal appeals court.
A three-judge panel for the U.S. Court of Appeals for the Federal Circuit (CAFC) this week affirmed a lower court decision that found Cypher did not infringe on patents held by Effingham, Ill.-based MarcTec LLC — in effect, siding with the Johnson & Johnson unit because of the way it assembles the drug-eluting stent.
MarcTec originally filed suit in November 2007, alleging that Cordis had infringed on inventions described in U.S. Patents 7,128,753 and 7,217,290. Both of the patents assigned to MarcTec refer to surgical implants that gradually release therapeutic agents into the body, bonding the drug to the implant with a polymer or similar substance that become pliable and sticky when heat is applied.
Cordis, however, dissolves a drug (typically, sirolimus) with binding polymers in a volatile solvent that is sprayed on to the metal mesh of the stent, a process known as “solution casting.” The drug sticks to the stent as the solution evaporates at room temperature, the critical factor cited in rulings by the trial judge last year and the appeals court on Wednesday.
“We affirm the district court’s construction that ‘bonded’ means bonded by the application of heat,” Appeals Court Judge Pauline Newman wrote for the court in its Aug. 4 opinion, slapping aside assertions by MarcTec during appeal that heat was not the sole attribute distinguishing its patents from previously patented devices.
“Perhaps it does,” Newman wrote, but also observed that the time to make such arguments should have been at the trial level. In fact, both Newman and the trial judge, David Herndon of the Southern District of Illinois, all but accused MarcTec of trying to cherry-pick its facts — saying the plaintiffs discounted the role heat-bonding made in making its invention unique in the case against Cordis while relying on that distinction when it previously defended the patents in an earlier infringement suit.
Herndon in February ordered MarcTec to pay $4.7 million to Cordis to cover its costs defending what he described as “baseless” claims by the plaintiff, even after it learned how Cordis assembled the Cypher stents. MarcTec also has appealed that ruling, which is still pending before the Federal Circuit.