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The Battle Rages On…

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In the ongoing battle between Cordis Corporation and Boston Scientific Corporation over stent technology, the District of Delaware recently upheld two jury verdicts while denying Cordis’ motion for judgment as a matter of law and motion for a new trial. Cordis Corp. v. Boston Scientific Corp., et al., C.A. Nos. 03-027-SLR, 03-283-SLR, Memorandum Order (D. Del. Sept. 24, 2007).

In June 2005, two separate juries found that various Cordis stents infringe certain claims of two BSC patents. (BSC was also found to infringe certain Cordis patents although this is not relevant to the pending motions and therefore I have not described it in detail.) While the District of Delaware case was pending, the inventor on one of the patents-in-suit filed a separate lawsuit in California relating to an assignment agreement with BSC over one of the patents. As part of that litigation, the California court was required to construe the claims of one of the patents. Cordis now argues that it is entitled to a judgment of non-infringement as a matter of law based on the claim construction argued by BSC in California and ultimately adopted by the court. Judge Robinson acknowledged that the court may revise its “interlocutory” claim construction ruling at any time prior to entry of judgment but refused to do so here. The Court noted that Cordis, significantly, failed to present this claim construction dispute to the the Court prior to this motion as critical to its non-infringement defense.

Cordis also moved for a new trial based on an announcement by the FDA over a year after the jury verdict which, Cordis argued, proved its one stent is “non-thrombogenic” and therefore could not infringe. The Court held that this FDA announcement was not conclusive and only identified a risk that could possibly be due to stent thrombosis. This “speculative” evidence was not enought ot dismiss the case or grant a new trial.

The battle continues…(but not for a while in these cases…as part of this order the Court ruled that it will not entertain any additional motions in these cases until the Federal Circuit issues its decision)

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