Nevro fires back in spinal cord stim patent spat with Boston Scientific

Nevro (NYSE:NVRO) is seeking a reversal and remand for spinal cord stimulation patent infringement case against Boston Scientific (NYSE:BSX) that was ruled on this summer.

A legal firm representing the company filed a brief this week seeking to overturn a decision from this summer which found a number of patent claims invalid as indefinite.

In mid-July, a federal judge in California issued a mixed ruling in the ongoing case, finding that six claims in three of the Nevro patents are eligible but also that Boston’s SCS devices don’t infringe those claims (Boston doesn’t have a competing high-frequency SCS device on the U.S. market).

Later that month, Nevro said that it agreed to bury the hatchet with Boston Scientific in the ongoing spat, but added that it still thinks that the court’s decision precludes its rival from launching a high-frequency system in the U.S. and that it planned to appeal the portions of his ruling that went against it.

In its new brief, Nevro claims that Judge Vince Chhabria of the U.S. District Court for Northern California erred by misapplying law to claims “containing three sets of terms.”

The first set of terms are “configured to,” which were used in the context of a “signal generator configured to generate,” according to court documents. Nevro argues that the district court held claims that the term was indefinite “because the intrinsic record could support two plausible constructions of this claim language.”

The company argues that a claim “is not indefinite merely because the intrinsic record may point in more than one direction,” but that it should be determined by “whether a skilled artisan reading the claim language in context would understand the claim’s scope with reasonable certainty.”

Nevro goes on to claim that the terminology has definite scope, and suggests that the Court should adopt a tentative ruling which proposed the correct construction for the term, according to court documents.

The second error noted is in regards to claims requiring “a signal generator that generates a paresthesia-free therapy signal,” according to court documents.

The district court found the non-method claims indefinite because “it believed that the same system would either infringe or not depending on the patient,” according to court documents. Nevro said that a system that generates paresthesia-free therapy would infringe in every case of use, whether the results were paresthesia-free or not, according to court documents.

“This Court has long upheld claims like these against indefiniteness challenges where, as here, skilled artisans can readily determine claim scope based on the guidelines and examples in the patent and the understanding in the art,” Nevro’s counsel wrote.

In its third reference, Nevro claims that the court applied inapposite law for general purpose computers to hold mean-plus-function claims indefinite, but says that Boson Scientific “never argued this indefiniteness theory, and no party briefed the issue.”

The company said that both parties identified the same disclosed structure as corresponding to recited function, and said that the disclosure satisfies requirements for means-plus-function claiming.

Nevro implored the court to “reverse these erroneous indefiniteness rulings” and remand the case.

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