A Delaware jury ruled late on Friday that Cordis (Miami Lakes, Florida), with its Cypher, Bx Velocity, Bx Sonic and Genesis stents, infringes two patents – termed the Ding and Jang patents – covering drug-eluting stents (DES) and DES architecture held by Boston Scientific (Natick, Massachusetts), thus upholding the validity of both Boston Sci patents.
Cordis, a unit of Johnson & Johnson (New Brunswick, New Jersey), immediately issued a statement saying that the verdict was not supported by the evidence and that it would ask a U.S. District Court judge to overturn the verdict. It added: “If the verdict is not overturned, Cordis will appeal to the Court of Appeals for the Federal Circuit in Washington.”
The legal dispute is the third this year in Delaware federal court between the companies, with Boston Scientific losing two earlier patent fights.
Damages will be determined at a later date by a new jury that will consider the amount of damages and whether the infringement was willful.
Also, a jury has yet to determine damages due to Cordis based on a jury finding last month that Boston Sci’s Taxus DES product and its Libert and Express bare-metal stents infringe Cordis’ Palmaz patent on balloon-expandable stents. That jury also found that the bare-metal Libert stent infringes another Cordis patent, the Gray patent, relating to flexible balloon-expandable stents.
The Ding patent, which Boston Sci asserted against Cypher in the latest case, claims a two-layer drug coating on a DES. The Jang patent, asserted against Cypher and the Bx Velocity family, claims specific stent geometry.
In the consolidated trial, Boston Scientific was represented by Kenyon & Kenyon and Kirkland & Ellis. Kenyon & Kenyon asserted the first Boston Scientific patent on drug-eluting stents, while Kirkland & Ellis asserted a Boston Scientific patent on the architecture of the stents.
In other legalities:
• The Securities and Exchange Commission (SEC) said yesterday that it would push forward its civil case against Richard Scrushy, former CEO of HealthSouth (Birmingham, Alabama).
The SEC in 2003 filed charges citing accounting fraud by both HealthSouth and Scrushy.
HealthSouth agreed last month to pay $100 million to settle with the SEC (Medical Device Daily, June 10, 2005), while a jury last month issued “not guilty” verdicts on 36 criminal counts against Scrushy, verdicts not ruling out the potential civil case against him (MDD, June 29, 2005).
The SEC said it would file its charges today, the charges expected to accuse Scrushy of heading a conspiracy to overstate company earnings by $2.7 billion over a seven-year period, charges on which Scrushy was exonerated in the criminal case.
The SEC case sought monetary penalties and an order to bar Scrushy from serving as an officer or director of a public company. That case was put on hold pending the outcome of the criminal charges.
After the not guilty findings, HealthSouth issued a statement saying it would refuse to rehire Scrushy.
The hits – of the legal sort – keep coming for Guidant (Indianapolis).
Two more class actions have been filed vs. the company related to alleged failures of its implantable cardioverter defibrillators (ICDs), adding to those already filed. The actions are for those buying Guidant shares between Dec. 15, 2004, and June 23, 2005, the latter date coming shortly after the company’s acknowledgement concerning problems with the devices (MDD, June 21, 2005), thus damaging its share value as well as its potential $24.5 billion acquisition by Johnson & Johnson.
One suit was filed by Schiffrin & Barroway (Radnor, Pennsylvania), the other by Schatz & Nobel (Hartford, Connecticut).
Kinetic Concepts (KCI; San Antonio) reported that U.S. District Court for the Western District of Texas issued its ruling on the Markman hearing in KCI’s patent suit against BlueSky Medical (LaCosta, California), and that the court construed certain terms of U.S. patent No. 5,636,643 (the ’643 patent) and ruled that other terms were definite and did not require construction by the Court.
The court separately granted leave for both sides to file amended pleadings in the case. KCI’s amended pleadings assert infringement of an additional patent, U.S. patent No. 5,645,081 (the ’081 patent). The ’643 and ’081 patents both are owned by Wake Forest University (Winston-Salem, North Carolina) and licensed to KCI.
The defendants’ amended pleadings include additional antitrust allegations against KCI. As a result of the amended pleadings, it is possible that an additional Markman hearing could be held. A new trial date has not yet been set for the case.
KCI and BlueSky compete in the wound care and therapeutic surfaces sector.