Free Answer to Counterclaim - District Court of Delaware - Delaware

Case 1:07-cv-00765-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE BOSTON SCIENTIFIC CORPORATION and BOSTON SCIENTIFIC SCIMED, INC., ) ) ) ) ) ) ) ) ) ) ) ) )

Plaintiffs, v. JOHNSON & JOHNSON, INC. and CORDIS CORPORATION, Defendants.

Civil Action No. 07-765-SLR JURY TRIAL DEMANDED

BOSTON SCIENTIFIC CORPORATION AND BOSTON SCIENTIFIC SCIMED, INC.'S REPLY AND AFFIRMATIVE DEFENSES TO JOHNSON & JOHNSON, INC. AND CORDIS CORPORATION'S COUNTERCLAIMS Plaintiffs Boston Scientific Corporation and Boston Scientific Scimed, Inc. (collectively "BSC"), by their attorneys, for their Reply to the Answer and Counterclaims of Defendants Johnson & Johnson, Inc. and Cordis Corporation (collectively "Cordis"), hereby state as follows in reply to the numbered paragraphs of Cordis's counterclaims: 1. BSC denies that Cordis is a pioneer in developing invasive treatments for vascular

disease. On information and belief, BSC admits the remaining allegations contained in paragraph 1. 2. 3. 4. 5. 6. BSC admits the allegations contained in paragraph 2. Denied. Denied. BSC admits the allegations contained in paragraph 5. BSC admits the allegations contained in paragraph 6.

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7.

BSC admits the allegations in the first and second sentences of paragraph 7. BSC

admits that it intends to begin selling the PROMUS stent in the Unites States imminently upon FDA approval, which is expected. 8. BSC admits that on May 29, 2007, U.S. Patent No. 7,300,662 entitled "Drug/Drug

Delivery System for the Prevention and Treatment of Vascular Disease" (the "'662 patent") was issued by the United States Patent and Trademark Office to Falotico et al., but denies that the '662 patent was "duly and legally" issued. BSC lacks knowledge or information sufficient to form a belief as to the truth of the allegations as to the ownership of the '662 patent, and therefore denies the same. 9. 10. 11. Denied. Denied. BSC denies the allegations of paragraph 11 as they are pled in relation to Cordis's

counterclaims, but BSC admits that a present actual and substantial controversy exists as recited in BSC's Declaratory Judgment complaint. 12. 13. 14. BSC repeats and re-avers it responses to paragraphs 1­11 of the counterclaims. Denied. BSC denies the allegation in the first sentence of paragraph 14. BSC denies the

allegations in the second sentence of paragraph 14 as they are pled in relation to Cordis's counterclaims, but BSC admits that an actual and justiciable controversy exists as recited in BSC's Declaratory Judgment complaint. 15. BSC admits that it was aware of the existence of the '662 patent at the date of

Cordis's counterclaims, but denies the remaining allegations of paragraph 15.

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AFFIRMATIVE DEFENSES First Affirmative Defense Non-Infringement 16. BSC incorporates by reference and realleges each and every allegation contained

in paragraphs 1­15 above. 17. BSC has not infringed, does not infringe, and will not infringe (either directly,

contributorily, or by inducement), either literally or under the doctrine of equivalents, any valid and enforceable claim of the '662 patent. Second Affirmative Defense Invalidity 18. BSC incorporates by reference and realleges each and every allegation contained

in paragraphs 1­17 above. 19. The claims of the '662 patent are invalid for failure to satisfy the requirements of

the United States patent laws embodied in 35 U.S.C. §§ 100, et seq., including one of more of the following: 35 U.S.C. §§ 101, 102, 103, 112. PRAYER FOR RELIEF WHEREFORE, BSC prays that this Court enter judgment as follows, ordering that: (a) Defendants' counterclaims against Plaintiffs are dismissed in their entirety with

prejudice, and denying all of the relief requested by Defendants therein; (b) (c) Each and every claim of U.S. Patent No. 7,300,662 is invalid; Plaintiffs are not liable for directly, contributorily or inducing infringement of any

claim of U.S. Patent No. 7,300,662, either literally or under the doctrine of equivalents;

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(d)

Defendants and their officers, agents, employees, representatives, counsel and all

persons in active concert or participation with any of them, directly or indirectly, be enjoined from threatening or charging infringement of, or instituting any action for infringement of U.S. Patent No. 7,300,662 against Plaintiffs, its suppliers, customers, distributors or users of its products; (e) Defendants pay to Plaintiffs the costs and reasonable attorney's fees incurred by

Plaintiffs in this action; and (f) proper. DEMAND FOR JURY TRIAL Plaintiffs demand a trial by jury on all issues so triable. Plaintiffs be granted such other and further relief as this Court deems just and

YOUNG CONAWAY STARGATT & TAYLOR LLP

/s/ Karen L. Pascale
Dated: March 12, 2008 __________________________________________ Josy W. Ingersoll (No. 1088) [[email protected]] Karen L. Pascale (No. 2903) [[email protected]] Karen E. Keller (No. 4489) [[email protected]] Andrew A. Lundgren (No. 4429) [[email protected]] The Brandywine Building 1000 West Street, 17th Floor Wilmington, Delaware 19801 (302) 571-6600 Attorneys for Plaintiffs, Boston Scientific Corporation and Boston Scientific Scimed, Inc.

OF COUNSEL: Richard L. DeLucia Paul M. Richter Michael K. Levy Jerry Canada KENYON & KENYON LLP One Broadway New York, New York 10004 (212) 425-7200

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CERTIFICATE OF SERVICE I, Karen L. Pascale, Esquire, hereby certify that on March 12, 2008, I caused to be electronically filed a true and correct copy of the foregoing document with the Clerk of the Court using CM/ECF, which will send notification that such filing is available for viewing and downloading to the following counsel of record: Steven J. Balick, Esquire [[email protected]] John G. Day, Esquire [[email protected]] Lauren E. Maguire, Esquire [[email protected]] ASHBY & GEDDES 500 Delaware Avenue, 8th Floor Wilmington, DE 19801 I further certify that on March 12, 2008, I caused a copy of the foregoing document to be served by e-mail on the above-listed counsel and on the following non-registered participants in the manner indicated: By E-Mail David T. Pritikin, Esquire [[email protected]] William H. Baumgartner, Esquire [[email protected]] Paul E. Veith, Esquire [[email protected]] Russell E. Cass, Esquire [[email protected]] SIDLEY AUSTIN LLP One South Dearborn Chicago, IL 60603 YOUNG CONAWAY STARGATT & TAYLOR, LLP

/s/ Karen L. Pascale
Josy W. Ingersoll (#1088) [[email protected]] Karen L. Pascale (#2903) [[email protected]] Karen E. Keller (#4489) [[email protected]] Andrew A. Lundgren (#4429) [[email protected]] The Brandywine Building 1000 West Street, 17th Floor Wilmington, Delaware 19801 (302) 571-6600 Attorneys for Plaintiffs, Boston Scientific Corporation and Boston Scientific Scimed, Inc.

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