EPO new battleground in Nevro and Boston Scientific medical device dispute

The EPO Boards of Appeal have revoked several patents belonging to Nevro, following oppositions from competitors Boston Scientific and Medtronic. While two of the companies had previously settled all global litigation in 2022, the EPO is the new centre of disputes over devices for back pain management in Europe.

Nevro, Boston Scientific and Medtronic are all leaders in the medical devices field. Following heated opposition against the granting of the former’sEP 2 207 587, which began in 2019,the EPO Technical Boards of Appeal (3.4.01) has issued a revocationon the grounds of added matter (case ID: T 0291/19).

This is one of several Nevro patents which the EPO has revoked, although the company still has two patents awaiting upcoming proceedings. In 2022,Nevro and Boston Scientific settled all global litigation. The opposition proceedings had been stayed for several years due to an entitlement action filed by Boston Scientific.

No second success

EP 587 covers ‘multi-frequency neural treatments and associated systems and methods’, which medical professionals employ to treat patients with severe back pain. The associated device sends electric pulses to the spinal card to prevent the brain receiving pain signals. Boston Scientific and Medtronic launched their opposition to the patent in 2019, which the EPO’s Opposition Division had initially rejected.

Both parties appealed to the Technical Boards of Appeal, and the EPO scheduled a hearing for 5 March 2024. Nevro then stated its intention not to attend. As such, on 16 February, the appeal board handed down a written decision to revoke the patent, concluding 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 says, “Nevro discontinued and withdrew from the matter because the particular patent was no longer strategically relevant. There may likely be more Board of Appeal decisions of a similar vein, but they have no practical or commercial importance to Nevro. The case was not related to the US litigation between Nevro and Boston.”

A month of events

EP 587 is the first patent in the family under parent patentEP 2 243 510. The Opposition Division also revokedEP 2 586 488in January 2024.EP 2 630 984is the first divisional, which the Opposition Division 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 revoked by the Opposition Division, with the EPO scheduling oral proceedings for EP 285 on 8 March. However, Nevro also withdrew its appeal here. The EPO had scheduled oral Opposition Division proceedings for a third divisional Nevro patent,EP 3 156 099, for 18 March. However, Nevro again withdrew its request for oral proceedings and the patent was revoked on 12 February.

Nevro, however, still has two chances to succeed at the Opposition Division. Parties are still fighting over EP 510, with the Boards of Appeal scheduling oral proceedings for 17 April, and the patent family ofEP 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.