Boston Scientific (NYSE:BSX) is slated for a $41.5 million payment from Cordis Corp., Johnson & Johnson’s stent-making arm, after a Delaware federal judge more than doubled a jury award.
Boston Scientific won a $19.5 million decision in May 2011, when a jury ruled that the Cordis Cypher and BX Velocity stents infringed a BSX patent.
The case 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).
After the jury’s damages decision last year, Cordis asked Judge Susan Robinson of the U.S. District Court for Delaware to over-rule the decision. Boston Scientific filed a series of motions asking the judge to award legal fees of about $4.7 million and to enhance the damages award.
Robinson denied the Cordis bid and BSX’s move for legal fees, but boosted the original jury award from $19.5 million to $20.8 million and granted Boston Scientific’s move for enhanced damages.
"As there exists clear and convincing evidence that Cordis’s conduct is sufficiently culpable to justify enhancing damages, the court finds that doubling the jury’s award (of $20,754,192, as amended) is reasonable under the circumstances," Robinson wrote, according to court documents. "BSC also points out that Cordis repeatedly emphasized at trial that Cordis would be ‘perfectly content to pay whatever th[e] jury thinks is fair for rights to the 2.25 [mm] sector,’ yet challenged the jury’s verdict post-trial. … The court declines to allow Cordis, an adjudicated willful infringer, to effectively owe less for its post-verdict infringement than the jury found for its pre-verdict infringement under the circumstances."
It’s 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 yesterday.
"Cordis has simply made the business decision that it will not be profitable for it to sell infringing stents moving forward," she wrote.
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.
