A federal judge in Delaware yesterday granted a preliminary injunction to Nevro Corp. (NYSE:NVRO) barring neuromodulation rival Stimwave from using higher-frequency neurostim to treat chronic pain.
Redwood City, Calif.-based Nevro brought the suit in February, alleging that Stimwave infringed on patents related to Nevro’s Senza system and HF10 therapy. The lawsuit, which was filed in the U.S. District Court for the District of Delaware yesterday, seeks preliminary and permanent injunctive relief against further infringement as well as damages and attorney’s fees.
Yesterday Judge Colm Connolly granted a limited preliminary injunction barring infringement of a pair of claims on one of the patents in question, restricting use of the Stimwave device to frequencies below three kHz.
“Protecting our core intellectual property has always been important to Nevro’s success as a business, and today’s order affirms once again the strength of our intellectual property,” general counsel Kashif Rashid said in prepared remarks.
Stimwave vowed to appeal the ruling.
“We respectfully disagree with the court’s decision to grant in part Nevro’s request that limits programming the widest array of patient care options and will be appealing the ruling,” founder & CEO Laura Perryman said in a press release. “Stimwave has doubled its revenue year over year before offering expanded spinal cord stimulation programming in the U.S. covered by the court’s order and we expect our one-of-a-kind, wireless, [implantable pulse generator]-free technology to continue to drive this rapid-growth trajectory as planned, even during the pendency of our appeal for this specific feature.”
Three reasons for granting the injunction
Connolly, agreeing with Stimwave’s argument that it’s in the public’s interest to allow a wide variety of treatment options, nevertheless found that “a critical public interest would not be injured by the grant of a preliminary injunction.”
First, he wrote, “Nevro’s request for injunctive relief is narrowly tailored Nevro’s requested relief would not entirely prohibit Stimwave from selling its SCS systems; and thus, for the small number of chronic pain patients who cannot, or will not, be treated with IPG-based systems, Stimwave’ s low frequency therapy will still remain an option.”
Secondly, Connolly cited Stimwave’s own clinical data showing that its high-frequency therapy is noninferior to its low-frequency therapy.
“Therefore, by enjoining Stimwave from selling and programming its SCS systems at high frequencies, patients using Stimwave’ s SCS systems will still be able to receive treatment of an equivalent quality, albeit at frequencies below 3 kHz,” he wrote. “Third, for those patients that desire high frequency, paresthesia-free therapy, they will have access to Nevro’s products.”
The judge also took issue with Stimwave founder & CEO Laura Perryman’s “patently false” testimony in a deposition that her employees don’t use the term “paresthesia-free” because “it is a made-up word.”
“The fact that Ms. Perryman previously authored an article that uses the terms ‘paresthesia-free’ and ‘paresthesia,’ and the fact that Stimwave’s SURF clinical study also uses those terms, contradict her testimony. Those inconsistencies, along with Ms. Perryman’s combative and dismissive demeanor during her deposition support my finding that her testimony lacks credibility,” Connolly wrote.
