Summary judgment of infringement is granted in stent case
Boston Scientific Corporation, et al. v. Cordis Corporation, Civ. No. 10-315-SLR, April 13, 2011.
Robinson. J. Defendant’s motion to stay trial on damages and willfulness pending reexamination is denied; motion to submit supplemental brief in support of motion to stay is denied as moot; plaintiff’s motion for summary judgment of infringement is granted; defendant’s motion for partial summary judgment on the date of the hypothetical negotiation is denied; summary judgment is granted sua sponte in favor of plaintiff with respect to the date of hypothetical negotiation; defendant’s motion to exclude expert from relying on outcome of prior case in reasonable royalty analysis is denied; plaintiff’s motion to preclude damages testimony based on incorrect hypothetical negotiation dates is granted.
The disputed technology relates to cardiovascular stents. In 2005, a jury found for plaintiff on infringement and validity. The district court upheld the verdict in 2007, and the Federal Circuit affirmed in March, 2009. A trial on damages and willfulness was set for February 2010. Defendant filed an ex parte reexam in October 2009. No amendment to the claim language resulted. Defendant filed a second reexam proceeding January, 2011. In February, 2011, the PTO issued a non-final rejection of one claim (found to have been infringed by defendant) as anticipated and obvious. The court denied the motion to stay pending reexam, finding the request to stay untimely and noting the parties are direct competitors. The accused stent in this action has the same stent architecture as the stents found to infringe in the previous litigation. Plaintiff contends that collateral estoppel bars defendant from claiming the accused stent does not infringe, and defendant does not dispute infringement. The parties dispute whether the hypothetical negotiation for damages purposes should date from the time the first stent was first marketed in the U.S. or from the time the stent actually at issue in this suit was first marketed. The court agrees with plaintiff that the stents are separate and distinct and the later date applies as a matter of law. The court grants summary judgment sua sponte in favor of plaintiff regarding the date of the hypothetical negotiation. Defendant’s Daubert motion fails, and expert testimony regarding the early proposed hypothetical negotiation dates which were rejected by the court will not be admitted at trial.
