J&J Cypher Case Could Bring Patent Issue Before Supreme Court

A patent case involving Johnson & Johnson’s Cypher stents may be a vehicle for the Supreme Court to rule on Federal Circuit deference to district court findings in construing patent claims.

The high court will decide by Oct. 31 whether to grant the petition brought by radiologist Bruce Saffran, who originally sued J&J in 2007 over his ’760 patent. The patent covers a device, such as a stent, where the direction of the medicine released is controlled with chemical bonds and can be targeted to a specific body site.

Before the Federal Circuit’s reversal, J&J was on the hook for nearly $600 million, including interest (D&DL, Feb. 7, 2011).

Saffran argues that the Federal Circuit made a mistake by not consolidating the case with the similar Lighting Ballast case. In that case, the Federal Circuit agreed to an en banc review of its longstanding policy of reviewing district court claim constructions, including factual questions, without deference.

In Saffran’s case, the panel’s decision involved factual considerations that were decided by “a fractured panel that substituted its own analysis of the specification and prosecution history for that of the district court,” the petition says.

But the upcoming en banc review “will likely increase the deference [the Federal Circuit] gives to district courts’ claim constructions,” Saffran notes. “All parties in Lighting Ballast, including the U.S. Patent and Trademark Office (“PTO”), agree that the Federal Circuit should change its existing approach and give district court claim constructions some level of deference; the only dispute is over the form that deference should take.”

Saffran is asking the high court to hold his petition until the Federal Circuit’s decision in the Lighting Ballast case, or vacate and remand the case to be considered in light of that decision.

The Federal Circuit’s upcoming review will likely lead to “a dramatic change in the law,” making Saffran’s case an opportunity for the Supreme Court to weigh the appropriate deference to give to District Courts’ claim constructions, the petition adds.

J&J decided in 2011 to exit the drug-eluting stent business and stop manufacturing the Cypher stent (D&DL, June 20, 2011). Saffran has litigated with Abbott and Boston Scientific over the same patent (D&DL, Aug. 31, 2009).

J&J did not respond to a request for comment by press time. — April Hollis