Judge Sue L. Robinson

On Monday, Johnson & Johnson (J&J) tried, and failed, a risky tactic in its much-publicized stent patent case, when the company’s lawyers attempted to prove it had not infringed on Boston Scientific’s (BSX) patent by highlighting the safety concerns about its own product.

Lawyers argued that J&J’s sirolimus-eluting Cypher stent had been linked to blood clots, and therefore, did not fall within the safety profile of BSX's patent of the paclitaxel-coated Taxus stent. The argument refuted earlier claims that Cypher, made by J&J subsidiary Cordis, is no more likely to cause blood clots than bare metal stents.

Judge Sue L. Robinson of the U.S. District Court for the District of Delaware, refused to overturn the jury’s decision, stating that J&J's evidence was “too speculative.” She upheld the jury verdict that found Cypher infringed on a BSX patent relating to the stent's drug coating, as well as a separate verdict pertaining to the design of the stent itself.

J&J and BSX are currently the only two companies manufacturing drug-eluting stents in the U.S. market. In separate cases two years ago, both companies have been found to have infringed on each other’s patents.

Both companies announced on Tuesday that they intend to appeal the verdicts of their respective cases in the U.S. Court of Appeals for the Federal Circuit in Washington, D.C.