In Boston Scientific Corp. v. Cordis Corp., C.A. No. 10-315-SLR (D. Del. Apr. 13, 2011), a patent infringement case dealing with cardiovascular stents, Judge Robinson recently decided several motions and granted partial summary judgment sua sponte on the date of hypothetical negotiation. Judge Robinson denied the defendant’s motion to stay the trial on damages and willfulness pending reexamination, finding that all of the Dentsply factors weighed against staying the litigation: (1) discovery is complete and trial is imminent, (2) “[a] final determination by the PTO could take years,” (3) the request for reexamination was filed “several years after the end of the jury trial” establishing liability, (4) the motion to stay was not filed until almost a year after the request for reexamination, (5) the reexamination proceedings are still in their early stages, and (6) the parties involved are direct competitors. Id. at 7-10. The court then granted the plaintiffs’ motion for summary judgment of infringement, finding that the accused stent “has the same stent architecture as the [other] stents that were found to infringe” in an earlier trial. Id. at 10-12. Finally, before deciding two Daubert motions related to expert opinions on royalties, Judge Robinson granted summary judgment sua sponte on the date of hypothetical negotiation. Id. at 15, 18. The court found that although the defendant marketed infringing cardiovascular stents in 1999, the new “stent is distinct from the [architecturally equivalent] stents previously marketed by Cordis.” Id. at 12-14. Thus, the marketing of the new stent “constituted a separate act of infringement” and the date of hypothetical negotiation was September 2009, the date when the new stent was first sold in the United States. Id. at 14-15.
Boston Scientific Corp. v. Cordis Corp., C.A. No. 10-315-SLR (D. Del. Apr. 13, 2011)
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