A federal judge in New Jersey dealt a blow to Boston Scientific Corp. (NYSE:BSX) and Abbott Laboratories (NYSE:ABT) in their patent war with Johnson & Johnson (NYSE:JNJ) stent unit Cordis Corp. and Pfizer Inc.’s (NYSE:PFE) Wyeth subsidiary.
BSX and Abbott had moved to stay the lawsuit, filed in September 2009 by Cordis and Wyeth over drug-eluting stent technology, pending a review by the U.S. Patent and Trademark Office. But Judge Joel Pisano denied the motion, ruling that the USPTO review — which one expert witness said could take more than six years — would unfairly disadvantage Cordis.
The quartet go head-to-head in the DES market, with the BSX/Abbott Promus and Xience stents competing against Cordis Corp.’s Cypher model. Cordis, which filed the suit the same day the patent was issued, claims to have lost roughly a billion dollars a year due to the alleged infringement.
In denying the stay, Pisano wrote that although it’s relatively early days for the case, the patents in question are set to expire in 2020. That means a lengthy USPTO review could take until 2017, almost the entire remaining life of the patents. And, he wrote, a decision in the case would render the patent review moot anyway.
“This litigation has been pending for over a year, discovery is underway and claim construction proceedings will take place in the coming months. The case is moving along at an appropriate pace. Staying this action for six year or more, the time it would take to complete reexamination of the patents-in-suit, could subject Cordis to continuing sales and market share loss,” Pisano wrote, according to court documents. “Any of the potential benefits favoring a stay are outweighed by the interests of the parties and the efficient administration of justice in continuing to move forward with this action.”