Free Letter - District Court of Delaware - Delaware

Case 1 :98-cv-00197-SLR Document 330 Filed 12/22/2006 Page 1 of 2
Youno CoNAw.-xr STARGATT & TAYLOR, LLP
THE BRAN¤YxvTNE Burromc
1000 VVEST STREET, 17TH FLooR
KAREN E KELLER NVTLL/{moron, DELAWARE 19801 <302)57l·660O
DIRECT Dr.-xr: 302-6554 (302) 571-1253 mx
DIRECT FAX: 302-576-3467 p_O_ BOX 391 (800) 253-2234 (DE ONLY)
l¤1 \V1LMrNcTor~:, DELAWARE 19899-0391 \“VW-Y9¤¤g¢¤¤¤W¤y-wm
December 22, 2006
Bv CM/ECF
The Honorable Sue L. Robinson J
United States District Court for the District of Delaware
J. Caleb Boggs Federal Building
844 N. King Street ‘
Wilmington, DE 19801
Re: Cordis Corg. v. Boston Scierztifzc Cory., C.A. 98-197-SLR
Dear Chief Judge Robinson: I
Boston Scientific respectfully submits this letter to respond only to Cordis’ references in
its recently—tiled reply brief on inequitable conduct to evidence outside the record. D.l. 327.
For the third time in this litigation, Cordis improperly relies on the Arrett opinion (id. at
9-10, '11'11 30-31) and the 1993 and 1998 lsostent agreements (id. at 11, 1111 36-37), even though
these materials are not in the record, and even though this Court previously denied Cordis’
motion to supplement the record with these materials in 2002 after the inequitable conduct bench
trial. D.I. 256, '11 3.1
Cordis’ tries to disparage BSC’s credibility by accusing BSC of failing to "disclos[e] all
relevant facts to the Court" (D.l. 327, 11 30, 11 36), but it is Cordis who misleads the Court by
failing to acknowledge that BSC submitted evidence that contradicts Cordis’ interpretation of
these materials when it successfully opposed Cordis’ motion to supplement after trial. D.l. 241.
ln particular, BSC showed in its opposition brief that Mr. Arrett did not interpret the Lau
patent to disclose undulating longitudinal structures. Ia'. at 4-7. Moreover, BSC showed that the
invention of the ’3 12 patent was included within the scope of Dr. Fischell’s testimony in the
Trellis litigation, that no work on inventions to be assigned to lsostent was performed before
December 17, 1993, and therefore that this testimony was false and inconsistent with his
testimony in this Court that he and his sons conceived the ’3 12 invention over the Thanksgiving
holiday weekend in November 1993. [cz'. at 7-14.
I Despite this Court’s denial of Cordis’ motion to supplement, Cordis also improperly attempted
to rely on these materials in its original reply appeal brief in the Federal Circuit. Cordis only
filed a corrected reply appeal brief after BSC notified Cordis that it intended to move to strike.
DB0l:2257960.l 05-1152.1001

Case 1:98-cv-00197-SLR Document 330 Filed 12/22/2006 Page 2 of 2
YOUNG CoNAwAY STARGATT & TAYLOR, LLP
The Honorable Sue L. Robinson
December 22, 2006
Page 2
Cordis’ references in its final reply brief to these materials that are outside the record
should not be permitted.
Respectfully submitted,
Qij/A/,2/we
Ka en E. Keller (# 4489)
KEK:cg T
cc. Clerk of the Court (by CM/ECE and Hand Delivery)
Steven J. Balick, Esquire (by CM/ECP and Hand Delivery)
Eugene M. Gelernter, Esquire (by e—mail)
George E. Badenoch, Esquire (by e-mail)
l
DB0l:2257960,l O54l52.l00l