In a case that was transferred from the E.D. Va., OrbusNeich Medical (“Orbus”) alleges Boston Scientific Corp. (“BSC”) infringes two patents relating to luminal stents and also asserts various non-patent claims including misappropriation of trade secrets. In particular, Orbus claims that BSC breached a 2000 confidential disclosure agreement by filing its own patent applications for Orbus technology, though the complaint did not clearly identify which specific patent applications were improper.
BSC moved to dismiss the non-patent claims for various grounds, including a statute of limitations defense. Orbus moved to strike a number of documents relied on in BSC’s motion arguing that the court was only permitted to decide the motion to dismiss on materials that were expressly incorporated in the complaint.
Judge Tauro granted-in-part the motion to strike, finding that at least one of the documents (a BSC patent application published in 2002) was a close enough match to an incorporated patent application to merit consideration by the court and another document (a 2002 BSC annual report publicly filed with the SEC) warranted consideration under judicial notice as a public record.
Judge Tauro declined to dismiss claims under the statute of limitations. Relying on Massachusetts law (pursuant to the conflict of laws provisions of the CDA) the court found that it could not charge Orbus with knowledge of either the published patent application or the annual report because Orbus had no duty to review them because no facts existed provoking Orbus to investigate.
Orbus’ claim for fraud was dismissed for failure to plead the claim with sufficient particularity required by Rule 9(b). Orbus’ claim for unjust enrichment was dismissed as being precluded by the CDA.
OrbusNeich Medical Co., Ltd., BVI, v. Boston Scientific Corp., 09-10962-JLT (D. Mass. Mar. 18, 2010)
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