A Medical Device Daily

Johnson & Johnson (J&J; New Brunswick, New Jersey) was spurned yesterday in an attempt to gain the upper hand in a patent case in which its lawyers tried a high-risk tactic: highlighting safety concerns about the company’s own product.

In what amounts to a bizarre and disturbing move, the company’s lawyers apparently hoped to persuade a federal judge in Delaware that because J&J’s drug-coated Cypher stent had been linked in clinical studies to blood clots, it fell outside the safety profile of a Boston Scientific (Natick, Massachusetts) patent for that company’s Taxus paclitaxel-eluting stent.

That position appeared to contradict J&J’s repeated and shrill assertions in its communications with doctors, the press and the public in the past year that Cypher is no more likely to induce clots than older bare-metal stents.

The worst part for the company is that it did no good. According to a report in The New York Times, Judge Sue Robinson refused to throw out a jury verdict that the Cypher, made by J&J’s Cordis (Miami Lakes, Florida) subsidiary, infringed on a Boston Sci patent covering drug coatings. She also upheld a jury verdict against J&J in a separate patent case involving the design of the underlying metal stent.

The J&J motion reflected the complexity of the legal maneuvering the companies have tried after back-to-back jury trials two years ago left them in a legal standoff. The juries decided that each company had infringed patents owned by the other.

Follow-up trials in which potential damages were to be weighed have been postponed while the two companies sought to overturn the infringement verdicts. Judge Robinson made all the verdicts final Monday. Both companies said that they would now proceed to appeal the verdicts against them to the United States Court of Appeals for the Federal Circuit in Washington.

In the motion related to drug coatings on which Judge Robinson ruled Monday, the goal of the J&J lawyers was clear enough — the Boston Scientific patent covers stents with a “non-thrombogenic” coating, that is, a coating that does not cause clots. Thus, evidence that Cypher has a significant clotting problem might suggest it does not infringe on the patent.

Judge Robinson’s ruling noted that while federal regulators had been concerned about studies showing potential medical risks in using Cypher and the Taxus stent, the only drug-coated stents on the American market, they had also concluded that it was not clear whether the drug-coating or some other aspect of the devices was at fault.

The judge said the evidence cited by J&J’s lawyers was “too speculative” for her to dismiss Boston Scientific’s patent claim or order a new trial into whether Johnson & Johnson infringed it.

n other patent news: Acacia Research reported yesterday that Acacia Patent Acquisition a subsidiary of Acacia Technologies Group (all of Newport, California) has acquired rights to a patent relating to devices used in medical surgery.

This patented technology relates to surgical instruments, such as scalpels, that are heated to reduce bleeding when tissue is cut. These devices can be used in orthopedics, endoscopy, arthroscopy, trauma, wound care, cosmetic, and numerous other surgical procedures.

“As Acacia’s licensing success grows, more companies are selecting us as their partner for the licensing of their patented technologies,” said Paul Ryan, Acacia CEO and Chairman. “Acacia is rapidly becoming the leader in technology licensing and we continue to grow our base of future revenues by adding new patent portfolios.”

The Acacia Technologies group develops patented technologies.