Bitter rivals Boston Scientific (NYSE:BSX) and Johnson & Johnson (NYSE:JNJ) subsidiary Cordis Corp. entered the latest volley of an ongoing stent patent battle as Cordis filed for appeal of a judge’s $40 million award to Boston Scientific.
Delaware Federal Judge Susan Robinson last month doubled a jury’s $20 million victory for Boston Scientific, writing that "there exists clear and convincing evidence that Cordis’s conduct is sufficiently culpable to justify enhancing damages."
J&J appealed that decision last week, setting up for another round of an epic skirmish between the pair of device titans.
The lawsuit involves 2.25mm stents – Cordis and BSX make the only such models available in the U.S. Cordis and Boston Scientific sued each other in early 2003, each alleging patent infringement. A jury ruled for BSX, finding that Cordis’ Cypher and BX Velocity stents were in violation of the patent. The decision was upheld on appeal, leaving the damages portion to be decided by another jury (a settlement allowed Cordis to keep making the stents pending the outcome of the case).
The $40 million ruling was the latest legal setback for Cordis in its bitter rivalry with Boston Scientific, even as the J&J subsidiary bows out of the coronary stent game – which was a factor in Robinson’s ruling decision.
"Cordis has simply made the business decision that it will not be profitable for it to sell infringing stents moving forward," she wrote in February.
In April 2011, Judge T. John Ward of the U.S. District Court for Eastern Texas upheld a jury award of $482 million and added $111.4 million in prejudgment interest to the damages already won by Dr. Bruce Saffran. Last September, Ward denied a Cordis motion for a new trial in that case.
In June 2011, a federal appeals court upheld Robinson’s ruling in another case that J&J’s patent covering the sirolimus (also called rapamycin) used in the Cordis 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.
Shares of BSX were up 3% to $5.68 as of about 11:30 a.m. today, while JNJ shares slipped 0.2% to $63.85.