A federal judge apologized to both parties and the federal bench in overturning a prior, erroneous ruling that a pair of Johnson & Johnson unit Cordis Corp.’s stent patents were unenforceable.
Judge Susan Robinson of the U.S. District Court for the District of Delaware said her 2002 decision in Cordis Corp. v. Boston Scientific Corp. et al. was wrong and reversed the opinion, setting the stage for yet another round in the more than 10-year-old case.
“I note in this regard, with deep regret, that this matter ended up buried among the multitude of matters (and the tens of thousands of pages of motions, briefs and appendices) filed by the parties associated with just the various stent cases on my docket, not to mention the papers filed in the dozens of other patent cases on my docket. My sincere apologies to the Federal Circuit and to the parties,” Robinson wrote.
She’d decided in 2006 that inventor Robert Fischell’s patent for a “Stent Having a Multiplicity of Closed Circular Structures” was unenforceable on deceptive nondisclosure of prior art grounds when Fischell applied for the patent.
That, in turn, nullified a second patent that depended on the validity of the first patent, Robinson ruled.
But the record was far from clear that Fischell and his patent lawyer, Morton Rosenberg, deliberately concealed the prior art, making her initial 2002 ruling mistaken.
“Therefore, although neither Dr. Fischell nor Mr. Rosenberg prosecuted the [patent] application with the professional care and vigor one might expect from them, I believe it would be clear error for me to imbue their conduct with deceptive intent,” Robinson wrote.
But two years after the appeals court sent the original ruling back to Robinson for clarification, there was no movement in the case. That prompted a lawyer for Cordis to write a letter to Robinson asking if the case had fallen off her radar.
“Counsel are mindful of the fact that the Court has been contending with an increased case load due to the longstanding judicial vacancy, and we therefore have been reluctant to raise the issue, but in light of the amount of time that has passedm the possibility occurs to us that this remand inadvertently could have slipped between the cracks,” wrote Steven Balick, a lawyer with Ashby & Geddes, the firm representing Cordis in the case.