Judge turns tables, chastises Boston Scientific lawyers in Nevro patent spat

Lawyers for Boston Scientific (NYSE:BSX) took their turns in the hot water as part of a patent infringement battle with neurostimulation rival Nevro (NYSE:NVRO).

Back in October 2017, Judge Vince Chhabria of the U.S. District Court for Norther California found that, although the Nevro attorneys’ failure to correct a patent examiner’s misunderstanding of prior art was a little “sleazy,” it didn’t amount to inequitable conduct.

Last week Chhabria chastised the other side, this time for “frivolous and vexatious” conduct for their roles in bids to redact documents that could show that Boston Scientific intended to copy technology from Nevro and other competitors.

The judge denied Boston’s motion to reconsider his prior denial of the redaction bid because “Boston Scientific has again requested to seal information without a legitimate basis,” he wrote in a Feb. 15 order.

“Most egregiously, Boston Scientific has requested that the court seal parts of an email that could constitute evidence that Boston Scientific intended to copy Nevro’s technologies (as well as the technologies of other companies),” Chhabria wrote, citing an email from R&D VP Rafael Carbunaru in which he wrote that another employee thought Boston Scientific’s “clinical research is short term focused (marketing and sales claims), or essentially me-too approaches (DBS), but not innovative in nature.”

“That is why we will need to copy or acquire approaches developed by others (Nevro, Spinal Modulation, Neurosigma, etc),” Carbunaru wrote, according to the judge.

Chhabria also found fault with Carbunaru’s and Boston Scientific’s assertion that the statement should be redacted because it contains trade secrets including “BSC’s strategies for developing new technologies to add to BSC’s stable of products in order to remain competitive in the market, as well as [a discussion of] BSC’s business development efforts for producing innovative products.”

“But it is obvious that Boston Scientific actually wants to seal this information because the company is concerned that the statement creates the impression that Boston Scientific was acting improperly,” he wrote. “Without opining on whether this email actually constitutes evidence that Boston Scientific did anything improper, what’s clear is that the document cannot be filed under seal simply because it might suggest that possibility. It’s this sort of misuse of the sealing process that allowed the church abuse scandal to remain hidden for so long.”

Other proposed redactions are also problematic, Chhabria added, including a request to seal another internal email discussion of still-in-development products yet to be publicly revealed.

“But the proposed redactions actually cover a number of discussions regarding Nevro’s products, and Nevro does not want that material to be redacted. Boston Scientific does not explain how the technical details of Nevro’s products could possibly be Boston Scientific’s confidential information, or how the disclosure of this information could unfairly prejudice Boston Scientific,” he wrote in denying the motion to seal.

The judge gave the attorneys until this morning to show why they shouldn’t be sanctioned for filing the motions.

“All lawyers for the Boston Scientific defendants involved in the sealing requests and the motion for reconsideration are ordered to show cause why they should not each be sanctioned $500 for their frivolous and vexatious conduct. Each lawyer involved must file a separate brief responding to this order to show cause by no later than February 20, 2018, at 10:00 a.m.

In their responses today, the five attorneys each disavowed any intent to mislead Chhabria or intentionally move to seal any documents without merit, with the lead attorneys apologizing for any offense taken by the judge.

The case dates back to November 2016, when Nevro filed a patent infringement suit against Boston Scientific claiming that infringement of patents relating to its Senza and HF10 spinal cord stimulation systems.

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