Analyst: Nevro could have the upper hand in patent spat with Boston Scientific

Nevro Corp. (NYSE:NVRO) appears to have the upper hand in a patent challenge from Boston Scientific (NYSE:BSX) over its Senza chronic pain device, according to patent attorneys interviewed by Leerink Partners analyst Danielle Antalffy.

Nevro’s Senza device, which won premarket approval from the FDA, is designed to deliver up to 10,000Hz to the spinal cord, allowing it to avoid the tingling sensation known as paresthesia that bothers some patients.

A week after the PMA nod, Boston Scientific filed a pair of inter partes review petitions with the U.S. Patent & Trademark Office’s Patent Trial & Appeals Board. The patent, no. 8,359,102, covers “Selective high frequency spinal cord modulation for inhibiting pain with reduced side effects, and associated systems and methods.” A panel of administrative patent judges is scheduled Dec. 1 to decide whether to grant the petitions and review the patent.

The lawyers interviewed by Antalffy said they think Nevro will ultimately beat the Boston Scientific challenge, citing a “weak and what they view as a somewhat poorly constructed argument from BSX” and the strength of the response Nevro filed last week.

“According to both [experts], BSX’s claims contained gaps in logic and inconsistencies in definitions and arguments to support obviousness that are likely to lack the level of persuasion needed to convince an experienced APJ panel to move forward with both or really either claim. In their view, the panel – slated for December 1st – is likely to dismiss both claims,” Antalffy wrote this morning in a note to investors.

“When parsing through the arguments 1 by 1, one specialist in particular cited weakness in BSX’s lack of ability to appropriately define paresthesia given NVRO’s response that historically SCS manufacturers have stated that paresthesia was necessary to replace the pain. In his view, this brings into question the obviousness of the need to eliminate paresthesia as NVRO’s Senza HF has been shown to do, and thus brings into the question the argument of prior art,” she wrote.

Nevro’s management believes it has a roughly 2-year head start on Boston Scientific even if the patent panel grants 1 or both of the review petitions, Antalffy noted, as Boston is awaiting results from the Accelerate trial of its Precision spinal cord stimulator adapted for high-frequency therapy. That 406-patient trial is slated to be complete in October 2016, according to ClinicalTrials.gov, meaning Boston’s entry against Senza isn’t likely to hit the U.S. market until 2017 at the earliest, Antalffy wrote.

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