Free Reply Brief - District Court of Delaware - Delaware

Case 1 :07-cv-00765-SLR Document 12 Filed 01/17/2008 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
BOSTON SCIENTIFIC CORPORATION and )
BOSTON SCIENTIFIC SCIMED, INC., )
)
Plaintiffs, )
) C.A. No. 07-765-SLR
v. )
)
JOHNSON & JOHNSON, INC. and )
CORDIS CORPORATION, )
)
Defendants. )
DEFENDANTS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS FOR
LACK OF SUBJECT MATTER JURISDICTION
Defendants J olmson & Johnson, Inc. and Cordis Corporation (collectively
"Cordis") submit this reply in response to the Answering Brief filed by plaintiffs Boston
Scientific Corporation and Boston Scientific Scimed, Inc. (collectively "Boston Scientific").
On January 9, 2008, the Court entered an order denying Abbott Laboratories’
("Abbott") motion for reconsideration of the Court’s decision dismissing Abbott’s declaratory
judgment cases — involving the same patents and accused product at issue in the Boston
Scientific cases — in favor of Cordis’s actions filed in the District of New Jersey. Now that the
Abbott cases are proceeding in New Jersey, Cordis submits that the appropriate course of action
here would be for this Court to transfer the Boston Scientific cases to New Jersey and allow the
New Jersey Court to resolve the jurisdictional issues. As Cordis explained in its motion to
transfer the Boston Scientific cases, filed on December 20, 20071, the Boston Scientific cases
I See D.I. 21 in C.A. No. 07-333-SLR, D.I. 19 in C.A. No. 07-348-SLR, D.I. 22 in C.A. No. 07-
409-SLR, and D.I. 9 in C.A. No. 07-765-SLR.

Case 1:07-cv-00765-SLR Document 12 Filed 01/17/2008 Page 2 of 4
involve the exact same patents and the exact same accused product2 as the Abbott cases in New
Jersey. The Abbott New Jersey cases are also the first-filed cases — Boston Scientific filed its
f1rst declaratory judgment action ten days after Cordis filed the first of the Abbott cases in New
Jersey. Consequently, transfer of the Boston Scientific cases is appropriate and would result in
greater efficiency for the parties and the Court.
Even if the Court were to determine that it should decide the jurisdictional issue,
Boston Scientific’s arguments in favor of jurisdiction are unpersuasive. The majority of Boston
Scientific’s arguments are addressed in Cordis’s opening and reply briefs in support of its motion
to dismiss, and Cordis will not burden the Court by repeating them here. (See D.l. ll, 16 in C.A.
No. 07-333-SLR, and D.I. 9, 14 in C.A. No. 07-348-SLR.) Boston Scientific makes three new
argtunents, none of which are persuasive.
First, Boston Scientific argues that Cordis’s motion to transfer the Boston
Scientific cases somehow amounts to an acknowledgement that subject matter jurisdiction exists
for Boston Scientific’s declaratory judgment actions. (Boston Scientific Br. at 6.) This
argument makes no sense. Cordis filed its motion to transfer in the alternative because, now that
the Abbott litigation will proceed in New Jersey, it makes sense for the New Jersey Court to
consider the Boston Scientific cases as well, including whether subject matter jurisdiction exists
for those cases. Boston Scientific cites no authority for the proposition that filing a motion to
transfer amounts to an admission that subject matter jurisdiction is proper, particularly where
there is a pending motion to dismiss.
Second, Boston Scientific points to the fact that on November 29, 2007, a
committee of advisors to the FDA voted to recommend approval of the Abbott Xience V stent.
2 Boston Scientific’s Promus stent at issue in this litigation is simply a private-label version of
the Abbott Xience V stent at issue in the New Jersey cases.
2

Case 1:07-cv-00765-SLR Document 12 Filed 01/17/2008 Page 3 of 4
(Boston Scientific Br. at 3.) But that recommendation occurred aper Boston Scientific filed its
Complaint in this action on November 27, 2007. A party claiming declaratory judgment
jurisdiction must "estab1ish that such jurisdiction existed at the time the claim for declaratory
relief was filed." Benitec Australia, Ltd v. Nucleonics, Inc., 495 F.3d 1340, 1344 (Fed. Cir.
2007). Boston Scientific cannot rely on later events to support its claim for jurisdiction at the
time its Complaint was filed.
Finally, Boston Scientific cites several additional cases in support of its
jurisdictional position, but these add nothing to the cases and arguments already before the
Court. (Boston Scientific Br. at 4.) Sabert Corp. v. Waddington N Am., Inc., 2007 WL 2705157
(D.N.J. Sep. 14, 2007), concerned metal-coated plastic cutlery and dinnerware, not a medical
drug or product that was subject to FDA review and approval. Id at *1. And, there was no
suggestion that the plaintiff was not ready to begin selling the accused product immediately. In
Monolithic Power Sys., Inc. v. O2 Micro Int ’l, Ltd, 2007 WL 2318924 (N .D. Cal. Aug. 13,
2007), the accused products at issue were electronic controllers which were already being
marketed by the PlaintiffQ not drugs or medial devices subject to FDA approval. Id at *1. And,
in Takeda Pharms. Co. Ltd v. Sandoz, Inc., 2007 WL 2936208 (S.D.N.Y. Oct. 9, 2007), the
accused product was a generic drug subject to an expedited FDA review process via an
Abbreviated New Drug Application (AN DA), id at *1, unlike the Promus stent, which is not a
generic drug and requires a comprehensive FDA review and extensive clinical trials before FDA
review can be granted.
For the foregoing reasons, Cordis respectfully requests that this case be
transferred to the District of New Jersey, or in the alternative, dismissed for lack of subject
matter jurisdiction.
3

Case 1:07-cv-00765-SLR Document 12 Filed 01/17/2008 Page 4 of 4
ASHBY & GEDDES
/s/ Lauren E. Maguire
Steven J. Balick (I.D. # 2114)
John G. Day (I.D. #2403)
Lauren E. Maguire (1.D. #4261)
500 Delaware Avenue, 8th Floor
P.O. Box 1 150
Wilmington, DE 19899
(302) 654-1888
[email protected]
[email protected]
[email protected]
Attorneys for Dejendants
Of Counsels
David T. Pritikin
William H. Baumgartner, Jr.
Paul E. Veith
Russell E. Cass
Sidley Austin LLP
One South Dearborn
Chicago, IL 60603
Telephone: (312) 853-7000
Facsimile: (312) 853-7036
Dated: January 17, 2008
187386.1
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