Patent litigation update for Nevro–Boston Scientific case

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In a press release, Nevro Corp has announced that it has filed with Boston Scientific a joint statement proposing dismissal of the declaratory judgement claims that remain outstanding in their patent dispute on the basis of Boston Scientific’s representations to the court that it has no plans to launch a high frequency product in the USA. 

Nevro’s complaint in this case, filed in November 2016, relied in part on Boston Scientific’s announced plans to release early in 2017 the results of its ACCELERATE study of high-frequency SCS therapies.  The complaint anticipated that, based on those study results, Boston Scientific would imminently seek FDA approval and commercially launch a high-frequency product.

Since Nevro’s complaint was filed, Boston Scientific has extended the ACCELERATE study, and has not launched a high-frequency product commercially in the United States.

In the parties’ joint statement, Boston Scientific represented to the court that, as of now, it has not decided whether to launch a high frequency product and has not established a timeline for when such a decision might be made, if ever.

Boston Scientific further confirmed its public statements that the ACCELERATE study has been extended into 2019, with an estimated study completion date between April 2019 and November 2019.

On the basis of Boston Scientific’s representations, Nevro and Boston Scientific agreed to dismissal of Nevro’s declaratory judgment claims without prejudice on the grounds that the dispute between the parties is not ripe.

Nevro believes its patents, including those upheld by the district court covering the frequency range 1.5kHz to 100kHz, preclude Boston Scientific from launching a high frequency system.

Upon entry of such dismissal, Nevro will proceed to appeal the portions of the court’s summary judgement rulings adverse to Nevro.

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