A Massachusetts federal judge ruled that two non-patent claims in OrbusNeich Medical Inc.’s infringement lawsuit over Boston Scientific Corp.’s (NYSE:BSX) Liberté stent should not be dismissed for being too old.
Judge Richard Stearns of the U.S. District Court for Massachusetts denied Natick, Mass.-based Boston Scientific’s motion for a summary judgment on OrbusNeich’s claims for breach of contract and breach of the implied covenant of good faith and fair dealing, according to court documents.
The companies entered a confidential disclosure agreement in July of 2000 under which Orbus later provided BSX with samples of its stents in order to support the exploration of a joint venture between the two companies. Boston Scientific, however, declined to enter into any businsess arrangement with Orbus. In BSX 2004 launched the Liberté product.
In March 2009, Hong Kong-based Orbus slapped BSX with a lawsuit alleging that the Liberté stents infringe on its patents, and, in addition, accused BSX of breach of contract and misappropriation of trade secrets connected to the stents. In that lawsuit, filed in the U.S. District Court for the Eastern District of Virginia, Orbus alleged that Boston Scientific stole designs for luminal stent technology it later incorporated into the Liberté product.
BSX later filed its own patent application, according to the March 2009 lawsuit, which contained new stent designs that were not included in any of the company’s provisional filings for the technology. Orbus only became aware of the alleged theft after the Liberté stent hit the market. The company claims it designed “major aspects of the Liberté product architecture” and is seeking unspecified monetary damages and injunctive relief.
Appearing in court March 18, Boston Scientific lawyers argued for a summary judgment that the non-patent claims of Orbus’ suit are time-barred by the relevant statutes of limitations. "Under Massachusetts law, claims arising in contract (including claims for breach of the implied covenant of good faith and fair dealing) are subject to a six-year statute of limitations," Stearns wrote. Boston Scientific claimed that Orbus was aware or should have been aware that its contract claims were relevant to events that occurred six years before the company filed its initial complaint, according to court documents.
Orbus’s legal team countered that "the court should defer any ultimate finding on equitable tolling, because the relevant information remains within [BSX]’s exclusive possession," according to court documents. Equitable tolling suggests that that a statute of limitations should not bar a claim in cases where the plaintiff, despite their due diligence, could not discover an injury until after the expiration of the limitations period.
Judge Stearns wrote that "BSC has failed to prove as a matter of law that Orbus knew or should have known, prior to March 16, 2003, that BSC had misappropriated Orbus’ confidential information in breach of the CDA."
OrbusNeich told MassDevice in an email that it is pleased with the court’s decision.
“We remain confident in the merits of our case and look forward to its successful resolution,” the company said.
Boston Scientific declined to comment on the ruling.
It’s the latest in a string of bad news for BSX related to the Orbus suit. In April 2010, Orbus won a stent patent from the U.S. Patent & Trademark Office and promptly moved to amend the infringement lawsuit against Boston Scientific to include its new intellectual property.
In December of last year, the District Court of The Hague, Netherlands handed Boston Scientific Corp. another setback in the company’s ongoing spat with Orbus over cardiac device patents.
The Hague court ruled that BSX’s lawsuit accusing Orbus of infringing its patent with its Evolution 2 catheter could not proceed, according to Orbus.
The court ruled that Boston Scientific’s patent for its "balloon catheter with distal guide wire lumen" had been revoked in the Netherlands "for lack of inventive step in a previous decision of the court in a case" against Medinol Ltd. in September 2003, according to the company.
Boston Scientific filed its lawsuit against Orbus for alleged patent infringement in the Netherlands in Nov. 2009. The latest ruling means that, in the eyes of the Dutch court, the patent owned by the Natick, Mass.-based device giant was not valid when it was filed.
