Yesterday, I received a comment to my piece on the J&J/Boston Scientific legal battle that was worthy of a more thoughtful reply. I received a cogent and articulate response from someone claiming to be Christopher Allman with J&J’s Cordis. I use the term claiming because the response so timely that I was immediately distrustful that it actually came from J&J. But sure enough, there is one communications person at a J&J company who is on his game.
My original posting was particularly negative towards J&J…a company that hasn’t been in my favor recently for their PR disaster with the American Red Cross. Seeing J&J execute a similarly bizarre legal strategy, I commented on it without the full benefit of fact. To be completely fair – I have not yet had a chance to get into PACER and actually review the legal documents on this case (something I normally do before writing on legal issues), so I went on the Times story as background. For commenting before I had more thoroughly reviewed all relevant materials, I apologize.
In the interest of balance, I am reprinting the J&J Cordis statement below (sorry I can't get the formatting right):
Just some additional thoughts to your piece.
One of Judge Robinson's rulings yesterday concerned a Boston Scientific patent for a stent coating that the inventor claims is non-thrombogenic. That means it theoretically prevents thrombosis. Since thrombosis has been demonstrated to occur with all currently marketed stents -- bare metal and drug-eluting from all manufacturers -- we hold that no currently marketed stent could be infringing a patent for a non-thrombogenic coating. That's why we intend to appeal.
The drug-coating process at issue in this case is not in use by any manufacturer at this time, nor has it ever been.
Cordis argued at trial that any drug-eluting stent for which thrombosis has been demonstrated can't infringe a patent that claims a non-thrombogenic coating.
We lost at trial and made a motion for that decision to be overturned as more data were presented that confirmed that thromboses do occur with drug-eluting stents, both Cordis' CYPHER Sirolimus-eluting Coronary Stent and Boston Scientific's Taxus.
This week's ruling by Judge Robinson denied that motion, and we are disappointed because we continue to hold that we are not infringing a patent for a non-thrombogenic coating. We expect to argue for that position on appeal.
Our legal strategy in this case is not inconsistent with any position we have held in any other venue.
We continue to believe that the CYPHER Stent offers important advantages in terms of efficacy and safety over bare metal stents and the Taxus stent when used in appropriate patients. A growing body of clinical evidence supports this position.