Anticipation over a court ruling in a patent spat between Nevro Corp. (NYSE:NVRO) and Boston Scientific (NYSE:BSX) sent NVRO shares plunging more than 26% yesterday, but after the actual ruling came out the stock surged some 24% today in pre-market trading.
Judge Vince Chhabria of the U.S. District Court for Northern California, who ruled earlier this month that any claims in the patents describing a non-paresthesia-producing therapy effect are indefinite, decided yesterday that six claims in three of the Nevro patents are eligible, but also ruled that Boston’s spinal cord stimulation devices do not infringe those claims (Boston doesn’t have a competing high-frequency SCS device on the U.S. market).
Chhabria also found that Boston’s use of the Spectra WaveWriter device in the Accelerate study does not infringe because it falls under the clinical trial safe harbor, “even after the patients have completed their participation in the trial.”
“This use is ‘reasonably related to the development and submission of information’ to the FDA for device approval. The FDA specifically approved a trial plan that allowed participants to continue to receive treatment after results were collected. And international standards for medical research require trial sponsors allow participants to access studied treatments even after the trial’s conclusion,” Chhabria wrote.
The judge also found that Spectra WaveWriter in commercial use doesn’t infringe because it does not operated at high frequencies; that claims Nevro asserted in four of the patents are invalid as indefinite; and that practicing those claims in Europe does not infringe according to U.S. patent laws.
“Nevro disagrees with portions of the court’s ruling, and intends to appeal,” the company said. “Nevro believes that the six method claims that were upheld would effectively preclude Boston Scientific from commercially providing high frequency SCS therapy between 1.5 kHz and 100 kHz in the United States.”
NVRO shares closed down -26.3% at $44.22 apiece yesterday, but surged 25.3% to $55.41 each in pre-market trading today after news of the decision broke.