Boston Scientific Corp. can’t defend itself against a rival devicemaker’s patent-infringement claim by arguing that the rival’s attorney should have made sure a patent examiner fully understood what a document meant when it was invoked in an administrative proceeding, a federal judge ruled.
Judge Vince Chhabria of the U.S. District Court for Northern California granted a motion by Nevro Corp. to strike that element of BSC’s defense in the dispute over Nevro’s implantable spinal cord stimulation therapy systems. The system is capable of providing high-frequency SCS therapy without creating paresthesia, according to Nevro.
In his Oct. 4 ruling, Chhabria said that even though BSC’s argument “is not unreasonable,” Nevro’s attorney “is not required to make sure that the patent examiner understands” all of the material information.
The document at issue, referred to before the PTO, related to pulse widths. BSC argued that it was clear the examiner misunderstood the reference and that Nevro’s attorney should have cleared things up, which would have led the examiner to issue a ruling in favor of BSC.
Nevro filed a federal court lawsuit last year, claiming that BSC began “aggressively trying to mimic Nevro’s SCS therapy” after witnessing Nevro’s trial results and “rapid success.”
The lawsuit states that Nevro tested its paresthesia-free high-frequency SCS system against BSC’s low-frequency system during an FDA trial prior to obtaining approval. Results showed that Nevro’s system was “nearly twice as effective,” which in turn resulted in the FDA awarding it “a rare ‘superiority’ label—allowing Nevro to claim its high frequency SCS therapy is clinically superior,” the lawsuit says.
Read the District Court’s ruling here: www.fdanews.com/10-05-17-OrderMotionStrikeNevrovBSC.pdf. — Ana Mulero