Judge sanctions Boston Scientific lawyers in Nevro patent row

A federal judge in California yesterday sanction lawyers for Boston Scientific (NYSE:BSX) in 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. In February, is was the turn of Boston’s attorneys when Chhabria chastised them for “frivolous and vexatious” conduct in filing motions 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 at the time, ordering the attorneys to show why they shouldn’t be sanctioned $500 apiece for filing the motions. In their responses, 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.

Evidently unswayed, yesterday he made good on his threat and leveled $2,500 in sanction against the quintet, according to court documents.

“Nothing in any of the responses to the order to show cause comes close to justifying either the original sealing request or the motion for partial reconsideration. Nor, at the hearing on the order to show cause, was any legitimate justification offered for either the original sealing request or the motion for partial reconsideration. Both filings were objectively frivolous and therefore in clear violation of Rule 11 of the Federal Rules of Civil Procedure,” Chhabria wrote.

Although it’s true that the practice of corporate law comes with pressure from clients to keep information under seal without a legal reason, he wrote, “the answer is not to file frivolous sealing requests.”

“The answer is to firmly explain to their clients that litigation is a public process, and that the public has the right to know what the litigation is about, subject only to very limited exceptions. Mere embarrassment to a corporation is not one of those exceptions,” the judge wrote in fining each attorney $500.

“Next time, the sanction will be far heavier,” he warned.

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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