Thursday, October 4, 2007
The NYT has a piece today on the prolific patent litigation among stent manufacturers. (Indeed, the longest trial I saw while clerking was a patent trial over stents.) It leads with an interesting anecdote:
Why would a company argue in court that its medical product is dangerous, even as it plays down the risks in public?
Johnson & Johnson did just that recently as part of its long battle for supremacy in cardiac stents. Its lawyers told a federal judge in Delaware that because medical studies had linked the company’s drug-coated Cypher stent to blood clots, it could not have infringed a competitor’s patent.
How so? Because, the lawyers said, the patent in question, held by Boston Scientific, claimed that the coating did not cause clots.
That reasoning — in essence, our product isn’t covered by Boston Scientific’s patent because our product is a health hazard — did not impress Judge Sue L. Robinson, who last week affirmed a jury’s patent infringement verdict against the Cypher.