Wednesday, September 28, 2011

Cordis v. Boston Scientific

Cordis lost its appeal at the CAFC.

Footnote 4 refers to the stent wars: Returning to this court for a second time, this case is but one installment—albeit, at nearly fourteen years, perhaps the longest—in an ongoing and epically expen- sive litigation saga known as the “Stent Wars.” E.g., Barnaby J. Federer, Keeping Arteries Cleared and the Courts Clogged, N.Y. TIMES, Oct. 4, 2007, at C1; see also Spectralytics, Inc. v. Cordis Corp., --- F.3d ---, 2011 WL 2307402 (Fed. Cir. June 13, 2011); Boston Scientific Corp. v. Johnson & Johnson, 647 F.3d 1353 (Fed. Cir. 2011); Cordis Corp. v. Boston Scientific Corp., 561 F.3d 1319 (Fed. Cir. 2009); Boston Scientific Scimed, Inc. v. Cordis Corp., 554 F.3d 982 (Fed. Cir. 2009); Cordis Corp. v. Medtronic AVE, Inc., 511 F.3d 1157 (Fed. Cir. 2008); Advanced Cardiovascular Sys., Inc. v. Medtronic Vascu- lar, Inc., 182 F. App’x. 994 (Fed. Cir. 2006); Cordis Corp. v. Boston Scientific Corp., 99 F. App’x. 928 (Fed. Cir. 2004); Scimed Life Sys., Inc. v. Johnson & Johnson, 87 F. App’x. 729 (Fed. Cir. 2004);

As one point:

Cordis correctly notes that a party prevailing on an issue of claim construction cannot argue for a differing claim construction following an adverse jury verdict. E.g., Hewlett-Packard Co. v. Mustek Systems, Inc., 340 F.3d 1314, 1320 (Fed. Cir. 2003) (citing Interactive Gift Ex- press, Inc. v. Compuserve, Inc., 256 F.3d 1323, 1345-46 (Fed. Cir. 2001)). The question here is whether BSC did, in fact, seek to alter the district court’s claim construction. No rule of law restricted BSC from seeking to clarify or defend the original scope of its claim construction. Inter- active Gift Express, 256 F.3d at 1346. Similarly, nothing prevented the district court from clarifying its previous construction of the term “undulating.” See Network Commerce, Inc. v. Microsoft Corp., 422 F.3d 1353, 1358 n.4 (Fed. Cir. 2005). But because BSC did not object to the court’s jury instruction regarding the construction of the term “undulating,” “[t]he verdict must be tested by the charge actually given [under] the ordinary meaning of the language of the jury instruction,” Hewlett-Packard, 340 F.3d at 1321.

Of intrinsic evidence:

Claim terms must be construed in light of all of the intrinsic evidence, which includes not only the claim language and patent written description, but also the prosecution history. ERBE Elektromedizin GmbH v. Canady Tech. LLC, 629 F.3d 1279, 1284-85 (Fed. Cir. 2010).

Therasense is cited:

In Therasense, Inc. v. Becton, Dickinson & Co., we made clear that a finding of inequitable conduct requires specific intent to deceive, and “to meet the clear and convincing evidence standard, the specific intent to de- ceive must be ‘the single most reasonable inference able to be drawn from the evidence.’” 2011 WL 2028255, at *10 (quoting Star Scientific, Inc. v. R.J. Reynolds Tobacco Co., 537 F.3d 1357, 1366 (Fed. Cir. 2008)). In light of this standard, we cannot agree that the district court’s sup- plemental findings were clearly erroneous or that its ultimate determination on inequitable conduct was an abuse of discretion.

Footnote 6:

This appears to be a case where BSC proved the threshold level of intent to deceive, but that proof was rebutted by Robert Fischell’s good faith explanation. See Therasense, 2011 WL 2028255, at *10 (quoting Star Scientific, 537 F.3d at 1368). BSC’s argument therefore hinges, as it did below, on Robert Fischell’s credibility. Reviewing the record, we agree that there is substantial evidence calling into question Robert Fischell’s veracity. But it was the province of the district court to determine credibility, and “[t]his court gives great deference to the district court’s decisions regarding credibility of wit- nesses.” Ecolochem, Inc. v. S. Cal. Edison Co., 227 F.3d 1361, 1378-79 (Fed. Cir. 2000); see also Anderson v. Bessemer City, 470 U.S. 564, 575 (“[O]nly the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.”).


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