A Novel Legal Argument

Our product is too unsafe to infringe on the patent. NYTimes (09.25.07):

"Johnson & Johnson was rebuffed yesterday in an attempt to gain the upper hand in a patent case in which its lawyers tried a high-risk tactic: highlighting safety concerns about the company’s own product.

The lawyers hoped to persuade a federal judge in Delaware that because Johnson & Johnson’s drug-coated Cypher stent had been linked in clinical studies to blood clots, it fell outside the safety profile of a Boston Scientific patent.

Johnson & Johnson’s Risky Tactic Fails in Patent Fight

But, believe it or not, that's not exactly what J&J has been telling the public.

Any which way, the lawyers are loving it.