Nevro alleges patent infringement by Boston Scientific

By Sara McCleary | Jan 3, 2017

REDWOOD CITY — A Redwood City-based medical device company is suing Boston Scientific, alleging patent infringement. Nevro Corp. filed the lawsuit on Nov. 28 with the Court for the Northern District of California, claiming that Boston Scientific is using technology covered by patents held by Nevro.

The technology in question, Nevro asserts, is covered by their patents relating to their Senza system and HF10 therapy. One of the patents in question, US patent no. 8,359,102 had previously been called into question by Boston Scientific who filed requests for inter partes review (IPR) with the Patent Trial and Appeals Board (PTAB) of the US Patent and Trademark Office. Boston Scientific was unsuccessful, however, when on Nov. 30, 2015 the PTAB found that “the information presented in the Petition does not establish a reasonable likelihood that [Boston Scientific] would prevail in showing that [parts of the patents] are unpatentable.”

According to San Francisco patent attorney Michael Dergosits, this previous appeal limits Boston Scientific’s options in responding to the current lawsuit. “What a lot of defendants are doing in cases like this these days,” he told Northern California Record, “is rather than maintaining the cost of the litigation, because attorney’s fees can be $100,000 a month depending on how vigorous the litigation gets, there’s opportunity for someone who’s being sued for infringement to ask the patent office to reexamine and determine whether the patent is valid in view of some of the prior work that they found. And so if they can get the patent office to open that type of case up, the district court litigation gets put on hold while the patent office does their job.” However, because they’ve already made the appeal, “I don’t think that’s going to be relevant in this case,” he said.

In its suit, Nevro is asking for a temporary, preliminary, and permanent injunction against further infringement of the patents, as well as financial damages and attorney’s fees. No specific dollar amount is yet requested for damages, instead the suit requests “a judgment awarding Nevro all damages suffered by Nevro for Boston Scientific’s unlawful conduct, and in no event  less than a reasonable royalty for Boston Scientific’s acts of infringement, including all pre-judgment and post-judgment interest at the maximum rate permitted by law.”

Concerning the complexity of patent cases, Dergosits explained that “There are two parts to a case for patent infringement. One is whether the patent is infringed. So that is not that difficult because often times the Boston Scientific product is what the Boston Scientific product is, so then there’s really a legal question as to whether or not the Nevro patent intersects with what they’re doing. So that’s not a difficult proof.” The second part to such cases, according to Dergosits, is the side that Boston Scientific’s appeal has already addressed. “The infringer is going to allege that the patent is not valid,” said Dergosits, “meaning that even though the patent office granted it, there is information that the patent office wasn’t aware of that if they had been aware of they wouldn’t have granted the patent.”

Nevro spokeswoman Katherine Bock told Northern California Record that the company has “no comment at this time.” Boston Scientific’s Catherine Brady did not answer questions and instead provided a statement regarding the lawsuit: “We believe this suit to be without merit and we intend to defend the case vigorously. In November, the European Patent Office revoked a Nevro high frequency patent pursuant to an opposition by Boston Scientific. The close timing of Nevro’s suit suggests it is in response to that decision. We stand by our intellectual property and remain focused on our commercial and clinical strategies to bring more innovative treatments to patients suffering from pain.”

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