The Web site of the International Herald Tribune had an interesting story recently about Johnson & Johnson, the manufacturer of a certain type of stent, actually claiming in court that it’s product was dangerous because it caused blood clots. The reason for this argument was to show this product did not infringe upon the patent of a competing product, which claims not to cause blood clots. It will certainly be interesting to see if this testimony is used in later product liability lawsuits against Johnson & Johnson for blood clots cause by the company’s stents. Here are excerpts from the story:
Why would a company argue in court that its medical product was dangerous, even as it played 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 judge in Delaware that because medical studies had linked the company’s drug-coated Cypher stent to blood clots, it could not have infringed on 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, that J&J’s product is not covered by Boston Scientific’s patent because it is a health hazard – did not impress the judge, Sue Robinson of the U.S. District Court, who affirmed last week a jury’s patent infringement verdict against Cypher.
But the argument of the lawyers, so at odds with Johnson & Johnson’s public efforts to depict Cypher as exceptionally safe, indicates just how tortured logic can become in the industry’s long, multipronged patent war over stents – the tiny mesh cylinders inserted in blood vessels to keep them propped open after blockages are cleared.
Since coronary artery stents were first marketed in the United States in 1994, they have grown into a $6.5 billion worldwide business in which profit margins can approach 80 percent. Because of the money at stake and the complexity of the products, the stent business is an unusually litigious field, with court cases around the world embroiling all the industry’s major players and many smaller ones.
“About $24 billion of these coronary stents have been sold since they went on the market in the United States, with pretty much every dollar attached to one of these cases,” said Matthew Dodds, a Citigroup analyst. “It looks like billions of dollars of profits are at stake.”
