Motion to strike portions of the memorandum of fact and law; 2009 FCA 155; May 14, 2009

Johnson & Johnson (J&J) had sued Boston Scientific (Boston) for patent infringement. At trial, the Court dismissed the action for infringement with regard to both patents and found one patent invalid. J&J appealed the dismissal of the infringement action with respect to the patent that was upheld in terms of validity. Boston did not cross-appeal the dismissal of the claim for the declaration of invalidity of that patent.

When Boston filed its responding memorandum of fact and law on the appeal, it included argument asserting the invalidity of the patent. J&J challenged those paragraphs on the basis that Boston had not appealed the finding that the patent was valid.

The Court found that it was open to Boston to argue that the patent was invalid without seeking a declaration to that effect. Thus, the portions of the memorandum of fact and law that related to invalidity of the patent were allowed to stay. The Court did permit J&J to file a reply memorandum so that the Court had a complete picture of the legal argument.

The full text of the decision can be found at: http://decisions.fca-caf.gc.ca/en/2009/2009fca155/2009fca155.html