Nevro claims BSC destroyed evidence in patent suit
Boston Scientific (BSC) and Nevro will testify before a Delaware Federal Court today following pleas from Nevro to delay the trial due to claims that BSC destroyed evidence related to a patent damages case.
In a letter submitted to the court on Sunday, Nevro requested that the jury trial be delayed in order to investigate the circumstances surrounding BSC’s alleged destruction of an inventor’s notebook.
While the trial was initially scheduled for Monday, Judge Colm Connolly gave an oral order to delay the case until Tuesday morning “at the earliest” in light of the accusations.
The jury was poised to hear Nevro’s defence in a patent infringement case brought by BSC, which claimed that Nevro had infringed four of its patents related to spinal cord stimulator technology.
The letter from Novra’s lead counsel Rodger Smith, partner at Morris Nichols Arsht & Tunnell said: “Because the portions of the notebook that were destroyed immediately precede the date of BSC’s alleged conception of the claimed inventions, this development has serious implications for the upcoming trial and the future conduct of this case.”
Smith claimed that it was “fundamentally unfair” for Nevro to assess the destruction of the evidence less than 48 hours before the trial began, asking Colm to grant additional discovery for additional defences.
Nevro suspects that BSC had “intentionally” cut out 18 pages of inventor Anna Pianca’s notebook with a razor blade.
When queried, BSC’s counsel claimed that the missing information likely contained technical information from a third-party company called Micronet Medical and was removed due to a non-disclosure agreement between the two companies.
Nevro also claims that the notebook contained “dozens” of loose papers that had not been produced in the course of discovery which allude to the fact that the lead design of the invention originated from someone other than Pianca.
Prior to the submission of the letter, BSC counsel produced a “lengthy list” of documents and pages from Pianca’s notebook that were “inadvertently omitted”.
The full letter can be read here.
Background
The suit was brought against Nevro by BSC in 2016, claiming that Nevro infringed patents related to Pianca’s spinal cord tech inventions, seeking $58 million in damages awards and a permanent injunction.
BSC initially accused Nevro’s Senza Spinal Cord Simulation System of infringing 10 of BSC’s patents.
An amended complaint was filed in February 2017. A second and third followed but remain sealed.
The complaint sparked an ongoing legal battle between the two companies, with Nevro hitting BSC with an infringement suit of its own in February this year.
