“EPO Revokes Nevro’s Medical Device Patent Amid Opposition from Boston Scientific and Medtronic”
In a significant development in the medical devices industry, the European Patent Office (EPO) Technical Boards of Appeal (3.4.01) has revoked a patent held by Nevro, a leader in the field. The patent, EP 2 207 587, had been the subject of intense opposition from industry rivals Boston Scientific and Medtronic since 2019. The decision to revoke the patent was based on the grounds of added matter (case ID: T 0291/19).
The patent in question, EP 587, pertains to ‘multi-frequency neural treatments and associated systems and methods’, which are used by medical professionals to treat severe back pain. The device associated with the patent sends electric pulses to the spinal cord, blocking pain signals from reaching the brain. Despite initial rejection of the opposition by the EPO’s Opposition Division, the Technical Boards of Appeal decided to revoke the patent following an appeal by Boston Scientific and Medtronic.
The revocation of EP 587 is the latest in a series of setbacks for Nevro, with the EPO having previously revoked several other patents held by the company. However, Nevro still has two patents pending in upcoming proceedings. In 2022, Nevro and Boston Scientific settled all global litigation, following years of opposition proceedings that had been stayed due to an entitlement action filed by Boston Scientific.
The EPO’s decision to revoke the patent was handed down in a written decision on 16 February 2024, after Nevro stated its intention not to attend a hearing scheduled for 5 March 2024. The decision concluded that “amendments made to claim one of both requests introduce subject matter which extends beyond the content of the application as filed”.
A spokesperson from Nevro commented on the decision, stating that the company had withdrawn from the matter as the patent was no longer strategically relevant. The spokesperson added that there may likely be more Board of Appeal decisions of a similar vein, but they would have no practical or commercial importance to Nevro.
The revocation of EP 587 is part of a series of events that have unfolded over the past month. The EPO also revoked EP 2 586 488 in January 2024, and EP 2 630 984, the first divisional, was revoked for added matter. Nevro appealed but recently withdrew this, thus rendering the first-instance decision final. A second divisional, EP 2 853 285, was also revoked by the Opposition Division, with Nevro withdrawing its appeal.
Despite these setbacks, Nevro still has two opportunities to succeed at the Opposition Division. Parties are still contesting over EP 510, with oral proceedings scheduled for 17 April, and the patent family of EP 2 819 742, which will take place on 2 May. The EPO has issued preliminary opinions, which are against and in favour of Nevro, respectively.
The EPO has become a new battleground for patent disputes in the medical devices industry. Boston Scientific and Medtronic have been involved in litigation with Nevro in the US since 2016, with the dispute spilling over into Germany in 2018. In 2021, a US court awarded Boston Scientific $20 million in damages because Nevro infringed two of its competitor’s patents. However, in 2022, Nevro and Boston Scientific reached a settlement, with Boston Scientific agreeing to pay Nevro $85 million.
The legal teams representing the parties in these proceedings have extensive experience in patent disputes. Boston Scientific was represented by Munich-based patent attorney firm Vossius & Partner, while Medtronic was represented by French firm August Debouzy. Nevro was represented by UK and German patent attorney firm Forresters.