Infringement judgment in prior suit does not result in summary judgment
Cordis Corporation v. Boston Scientific Corporation, et al., Civ. No. 08-779-SLR, July 21, 2009.
Robinson, J. Plaintiff’s motion for summary judgment is denied.
The disputed technology relates to axially flexible stents. The complaint was filed October 17, 2008 alleging infringing activities “are about to begin.” Plaintiff alleges that since a jury found in prior litigation before FDA approval to market in the United States, that res judicata dictates that the Taxus Liberté stents infringe the patent-in-suit. The Court finds that issue preclusion does not apply to plaintiff’s prior claim of infringement where there had been only an assertion that the Taxus Liberté stents infringe. The court in the prior litigation dismissed the claims regarding the Taxus Liberté stents without prejudice on the basis of lack of jurisdiction due to no evidence they were made, used, or sold in the U.S. Nor does claim preclusion bar these claims since the conduct in this litigation occurred after the first judgment and since patent infringement is a continuing tort, and a plaintiff may sue based on any infringing act, not merely the first. The finding in the first trial that the Liberté stent infringed does not necessitate a finding that the Taxus Liberté stents infringe since the latter have a drug/polymer coating. Discovery is warranted regarding axial flexibility is warranted and the court declines to order summary judgment on the current record.
