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, filed in the U.S. District Court for Delaware, sought preliminary and permanent injunctive relief against further infringement as well as damages and attorney’s fees.
In July 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.
In a court filing yesterday, Stimwave argued that Connolly “simply misread the clinical numbers” in finding that the Stimwave device’s clinical performance “pale[s] in comparison” to Nevro’s, citing study results showing that its device outperformed Nevro’s in patients reporting significant pain relief, nearly total pain relief and average reduction in pain:
|Responders (% with significant (>50%) relief)||Remissions (% with pain nearly eliminated)||Average reduction in pain|
“The district court compounded this error by finding, based on Nevro’s witnesses’ speculation, that physicians would confuse Nevro’s products with Stimwave’s and abandon Nevro because of hypothetical bad experiences with Stimwave [emphasis theirs]. Yet with years of real-world experience to draw from in Europe and Australia – where both parties’ products have been on sale for years – Nevro could not find a single physician who has ever done such a thing,” according to the appeal, filed with the U.S. Federal Circuit Appeals Court.
Stimwave also alleged that Connolly erred in finding no question of invalidity, arguing that Nevro’s claims are indefinite because “a skilled artisan cannot determine if an act infringes the claims except by actually performing the act and seeing if infringement occurs.”
“They are also anticipated and obvious: the prior art undisputedly ‘discloses each element of the asserted claims,'” Stimwave argued. “Finally, the injunction is overbroad and harms the public by depriving patients of the medical care they may need, and for which Nevro’s products are no substitute.”