Nevro Announces Patent Litigation Update

Nevro Corp. (NYSE: NVRO), a global medical technology company that is providing innovative evidence-based solutions for the treatment of chronic pain, today announced that the district court, in its patent dispute with Boston Scientific, issued an order on claim construction and summary judgment.

In the order, the Court ruled in Nevro’s favor with regard to six method claims in three Nevro patents, finding them patent eligible and rejecting Boston Scientific’s arguments that the claims were invalid as indefinite.  Specifically, the claims upheld in this ruling are 11, 21 and 23 of U.S. Patent No. 8,359,102, claim 18 of U.S. Patent No. 8,792,988, and claims 1 and 5 of U.S. Patent No. 8,768,472.  Collectively, these six claims cover methods for delivering SCS therapy at frequencies between 1.5 kHz and 100 kHz. Prior to the filing of this lawsuit, Boston Scientific filed two petitions challenging the validity of the claims of U.S. Patent No. 8,359,102 in the U.S. Patent Office.  The Patent Trial and Appeals Board denied institution of both petitions.

The Court found that Boston Scientific is not currently infringing the six upheld method claims.  Boston Scientific has not commercially launched a high-frequency SCS system in the United States.  The Court found that Boston Scientific’s sale of the Spectra WaveWriter systems for commercial use in the United States does not infringe the upheld method claims because the Spectra WaveWriter systems are limited to frequencies at or below 1.2 kHz.  In the United States, Boston Scientific is only using high-frequency SCS systems in the ACCELERATE clinical trial, and the Court found that Boston Scientific’s programming of patients who have completed the ACCELERATE clinical trial is still protected by the clinical trial safe harbor.

The Court, however, found that the asserted system claims in four of Nevro’s patents were invalid as indefinite.  The Court further held that practicing the upheld method claims in Europe does not infringe under U.S. patent law.

Nevro disagrees with portions of the Court’s ruling, and intends to appeal.

Nevro believes that the six method claims that were upheld would effectively preclude Boston Scientific from commercially providing high frequency SCS therapy between 1.5 kHz and 100 kHz in the United States.

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