US court dismisses infringement, allows trade secret theft claims against Nevro
A US district court has partially granted medical devices maker Nevro’s motion to dismiss patent infringement claims against the company by a competitor, Boston Scientific.
In a memorandum opinion published yesterday, November 25, the US District Court for the District of Delaware, said it would dismiss the majority of Boston Scientific’s claims of infringement, but it could not dismiss claims of export infringement and trade secret misappropriation.
The dispute dates to April 2018, when Boston Scientific sued Nevro for patent infringement, trade secret misappropriation and tortious interference.
Boston Scientific, which develops and sells spinal cord stimulation systems for the treatment of chronic back pain said Nevro was infringing nine of its patents with its competing systems.
The patents in dispute are US numbers 7,496,404; 7,127,298; 8,682,447; 6,993,384; 7,853,330; 7,822,480; 6,381,496; 7,177,690 and 9,162,071.
It also alleged that Nevro had stolen its trade secrets, by recruiting its ex-employees and asking them to disclose confidential information. It named one ex-employee, Jim Thacker, who worked at Boston Scientific from 2000-2006.
“Thacker agreed to an Employee Invention and Confidential Information Agreement that required him to keep confidential and refrain from disclosing to others all confidential information and trade secrets,” the filing said.
Thacker then left the company to work for Nevro. According to Nevro’s outside counsel, “Thacker took thousands of confidential Boston Scientific documents with him, including five of his own laboratory notebooks detailing the work he performed during clinical trials”, the filing claimed.
In its opinion, the court said it would dismiss eight of the infringement claims because Boston Scientific had made “no attempt” to connect specific components of the alleged infringing systems to elements of the asserted claims.
“Nevro should not be required to comb through 144 pages of exhibits to understand the bases of a Boston Scientific’s claims, and a court should not have to parse 144 pages of exhibits to determine if they state facts sufficient to demonstrate Boston Scientific’s entitlement to relief,” the court said.
It said that because it had not plausibly alleged infringement of eight of the patents, Boston Scientific also couldn’t bring claims that Nevro induced others to infringe the patents.
Additionally, it said Boston Scientific has not alleged any facts showing that Nevro knew that its systems infringed the asserted patents; rather, it merely states in each count that "Nevro's infringement is reckless, knowing, deliberate, and willful”.
But the court dismissed Nevro’s argument that Boston Scientific had not properly alleged trade secret theft. It said the level of detail in Boston Scientific’s complaint adequately separates its trade secrets from special knowledge of a person skilled in the trade, providing “sufficient particularity to survive a motion to dismiss”.
