Doc says med manufacturers using his stent technology

Marilyn Tennissen Nov. 20, 2007, 10:00am

BCS Taxus coronary stent

A surgeon considered a leader in cardiac stent technology is taking on Boston Scientific Corp. and Johnson & Johnson for infringement of his patents.

Wall Cardiovascular Technologies, the company of Dr. W. Henry Wall in Marshall, filed a complaint for patent infringement against BSC and J&J on Nov. 16. The federal lawsuit was filed in the Marshall Division of the Eastern District of Texas.

According to the original complaint, on Dec. 13, 2005, U.S. Patent No. 6,974,475 was duly and legally issued to Dr. W. Henry Wall for an invention titled Angioplasty Stent. All rights to the '475 Patent were assigned to Wall Cardiovascular Technologies LLC in Marshall on Nov. 2, 2007.

Coronary stents are tiny, mesh tubes used in the treatment of coronary artery disease and implanted in patients to prop open arteries and facilitate blood flow from the heart.

Wall is an Air Force veteran and according to the lawsuit is "one of the early pioneers of stent technology." An oral surgeon, he was assistant clinical professor at the Emory University School of Dentistry in the early 1980s.

"Dr. Wall's interest in angioplasty and stent technology was piqued when the first angioplasty in the United States was performed at Emory Hospital during Dr. Wall's tenure there," the suit says. "Upon reading of the breakthroughs in angioplasty that were taking place at Emory Hospital, Dr. Wall began to develop methods and devices for preventing the re-stenosis of vessels following angioplasty."

In 1984, the plaintiff claims, Dr. Wall conceived of the technology in the '475 Patent and continuing his work on stent technology, ultimately received not only the '475 Patent but several additional patents on related technology and medical devices.

The suit acknowledges that defendant Boston Scientific is a worldwide developer, manufacturer and marketer of medical devices that are used in a broad range of interventional medical specialties including interventional cardiology, cardiac rhythm management, peripheral interventions, cardiac surgery, vascular surgery, electrophysiology, neurovascular intervention, oncology, endoscopy, urology, gynecology and neuromodulation. Specifically, BSC is a leader in the interventional cardiology markets due in large part to its coronary stent products.

However the plaintiff claims that some of BSC's products are based on technology covered in Dr. Wall's patent.

"BSC has infringed and continues to infringe the '475 Patent by its manufacture, use, sale and/or offer for sale of BSC's Taxus Express products, and other' products and services related to coronary, carotid and peripheral stents, and its contributing to and inducement of others to manufacture, use, sell, import, and/or offer for sale of infringing products," the plaintiff's complaint states.
The suit then focuses on defendant Johnson & Johnson, "the world's largest and most broadly based medical devices and diagnostics company, holding the number one or number two positions in most of its major franchises." J&J is engaged in the manufacture and sale of a broad range of products in the health care field in many countries of the world. In addition, J&J's Cordis Division is a worldwide leader in developing and manufacturing interventional vascular' technology, including coronary stents.

The lawsuit alleges that J&J has also infringed the '475 Patent through its Cypher coronary stent product and other products and services related to coronary, carotid and peripheral stents.

"BSC and J&J have continued to make, use, sell, and offer to sell products that infringe the claims of the '475 Patent, and to contribute to and induce the infringement by others, without a license under the '475 Patent," the complaint states. "The defendants' acts of infringement are irreparably harming and causing damage to plaintiff."

Wall also alleges that the infringement is willful and deliberate.

"On or about Sept. 9, 2005, BSC attempted to license from Dr. Wall the patent application that subsequently issued as the '475 Patent," the suit states. "Unable to reach a mutually agreeable license and fully aware of the existence of the '475 Patent, BSC instead chose to market its infringing products in direct violation of Dr. Wall's rights under' the '475 Patent."

The plaintiff says that J&J's conduct is likewise willful and deliberate.

"As early as 1988, Dr. Wall contacted J&J and Cordis (at the time, J&J and Cordis were separate companies) to inform them of his recently filed patent application related to stent technology," the suit claims. "Dr. Wall was seeking a partner with whom to jointly commercialize his invention."

Dr. Wall claims to have periodic contact with both J&J and Cordis regarding his pending patent application, and within weeks of the issuance of the '475 Patent, Wall's patent attorney contacted J&J. By that time, J&J had acquired Cordis.

The court documents state that J&J agreed to meet with Dr. Wall to discuss the possibility of partnering to jointly commercialize the patented technology or to take a license under the '475 Patent.

"Ultimately, J&J decided to forego a license under the '475 Patent," the suit states. "J&J now willfully markets and sells products that infringe the '475 Patent."

Because the plaintiff believes that the infringement was willful and deliberate, Wall is seeking enhanced damages, a permanent injunction, interest, fees, costs and other relief that the court may deem just and proper.

Wall is represented by lead attorney Stephen Susman of Susman Godfrey LLP in Houston.

The case has been assigned to U.S. District Judge T. John Ward.

Case No. 2:07-cv-504-TJW

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