Case 1:16-cv-01163-GMS Document 1 Filed 12/09/16 Page 1 of 25 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Boston Scientific Corp. and
`Boston Scientific Neuromodulation Corp.,
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`Nevro Corp.,
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`Plaintiffs,
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`v.
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`Defendant.
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`Civil Action No.
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`JURY TRIAL DEMANDED
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`COMPLAINT
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`Plaintiffs Boston Scientific Corp. (“BSC”) and Boston Scientific Neuromodulation Corp.
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`(“BSNC”) (collectively, “Boston Scientific”), by their attorneys, hereby complain against
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`Defendant Nevro Corp. (“Nevro”) and alleges as follows:
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`OVERVIEW OF THE ACTION
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`1.
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`This is a patent infringement action arising from Nevro’s infringement of Boston
`
`Scientific’s U.S. Patent No. 6,895,280 (the “‘280 patent”), U.S. Patent No. 7,428,438
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`(the “‘438 patent”), U.S. Patent No. 7,437,193 (the “‘193 patent”), U.S. Patent No. 7,587,241
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`(the “‘241 patent”), U.S. Patent No. 7,891,085 (the “‘085 patent”), U.S. Patent No. 8,019,439
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`(the “‘439 patent”), U.S. Patent No. 8,644,933 (the “‘933 patent”), U.S. Patent No. 8,646,172
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`(the “‘172 patent”), U.S. Patent No. 8,650,747 (the “‘747 patent”), and U.S. Patent
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`No. 9,370,664 (the “‘664 patent”) (collectively, the “Asserted Patents”) via the manufacture, use,
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`sale, offer to sell, exportation, and/or importation, in whole or in part, of Nevro’s Senza® Spinal
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`Cord Stimulation System (the “Senza System”).
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`Case 1:16-cv-01163-GMS Document 1 Filed 12/09/16 Page 2 of 25 PageID #: 2
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`THE PARTIES
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`2.
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`Plaintiff BSC is a corporation organized and existing under the laws of the State
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`of Delaware and having a principal place of business at 300 Boston Scientific Way,
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`Marlborough, Massachusetts 01752.
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`3.
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`Plaintiff BSNC is a corporation organized and existing under the laws of the State
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`of Delaware and having a principal place of business at 25155 Rye Canyon Loop, Valencia,
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`California 91355. BSNC is a wholly-owned subsidiary of BSC.
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`4.
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`Upon information and belief, Defendant Nevro is a corporation organized and
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`existing under the laws of the State of Delaware and having a principal place of business at 1800
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`Bridge Pkwy, Redwood City, California, 94065.
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`JURISDICTION AND VENUE
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`5.
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`This action arises under the Patent Laws of the United States, Title 35 of the
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`United States Code.
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`6.
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`This court has subject matter jurisdiction over the causes of action asserted herein
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`pursuant to 28 U.S.C. §§ 1331, 1338(a), and 2201 et seq.
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`7.
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`This court has personal jurisdiction over Nevro. Upon information and belief,
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`Nevro is a resident of this judicial district, has systematic and continuous contacts in this judicial
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`district, regularly transacts business within this district, and regularly avails itself of the benefits
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`of this district. Upon information and belief, Nevro also sells and distributes the Senza System
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`in this district. Upon information and belief, Nevro derives substantial revenues from sales in
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`this district.
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`8.
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`9.
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`Venue is proper in this District under 28 U.S.C. §§ 1391(a), 1391(c), and 1400(b).
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`COUNT I: INFRINGEMENT OF U.S. PATENT NO. 6,895,280
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`Boston Scientific realleges paragraphs 1-8 above as if fully set forth herein.
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`01:21300644.1
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`10.
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`The ‘280 patent, entitled “Rechargeable Spinal Cord Stimulator System,” is a
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`valid, enforceable patent that was duly issued by the United States Patent and Trademark Office
`
`(“USPTO”) on May 17, 2005 in full compliance with Title 35 of the United States Code. A true
`
`and correct copy of the ‘280 patent is attached as Exhibit A.
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`11.
`
`BSNC is the assignee of the ‘280 patent with ownership of all substantial rights in
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`the ‘280 patent, including the right to exclude others and to enforce, sue, and recover damages
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`for past and future infringements. BSC is the exclusive licensee of the ‘280 patent.
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`12.
`
`Nevro has directly infringed, and continues to directly infringe, at least claim 1 of
`
`the ‘280 patent in violation of 35 U.S.C. § 271(a) by, for example and without limitation,
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`making, using, offering to sell, selling, and/or importing in and into the United States the Senza
`
`System.
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`13.
`
`Nevro has actively induced others to infringe at least claim 1 of the ‘280 patent in
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`violation of 35 U.S.C. § 271(b) by instructing others to use the Senza System. Nevro’s active
`
`inducement includes, for example and without limitation, marketing, selling, and offering to sell
`
`the Senza System, providing instructions on how to use the Senza System, and promoting the use
`
`of the Senza System. Upon information and belief, Nevro has induced such infringement with
`
`the intent that one or more claims of the ‘280 patent be infringed.
`
`14.
`
`Nevro has contributed to infringement by others of at least claim 1 of the ‘280
`
`patent in violation of 35 U.S.C. § 271(c) by offering to sell, selling, and/or importing the Senza
`
`System and/or one or more components of the Senza System, which are components of a
`
`patented combination and which constitute a material part of the inventions claimed in the ‘280
`
`patent, including without limitation the invention in at least claim 1 of the ‘280 patent. Nevro
`
`has offered to sell, sold, and/or imported the Senza System and/or one or more components of
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`01:21300644.1
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`the Senza System knowing the same to be especially made or especially adapted for use in an
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`infringement of at least claim 1 of the ‘280 patent, and that the Senza System and/or one or more
`
`components of the Senza System are not staple articles or commodities of commerce suitable for
`
`substantial noninfringing use.
`
`15.
`
`In violation of 35 U.S.C. § 271(f)(1), Nevro has supplied and/or caused to be
`
`supplied in or from the United States, and it continues to supply and/or cause to be supplied in or
`
`from the United States, the Senza System and/or one or more components of the Senza System,
`
`which constitute all or a substantial portion of the components of the inventions claimed in the
`
`‘280 patent, including without limitation the invention in at least claim 1 of the ‘280 patent,
`
`where such components are uncombined in whole or in part, and in such manner as to actively
`
`induce the combination of such components outside of the United States in a manner that would
`
`infringe at least claim 1 of the ‘280 patent if such combination occurred within the United States.
`
`16.
`
`In violation of 35 U.S.C. § 271(f)(2), Nevro has supplied and/or caused to be
`
`supplied in or from the United States, and it continues to supply and/or cause to be supplied in or
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`from the United States, the Senza System and/or one or more components of the Senza System,
`
`(i) which are especially made or especially adapted for use in the inventions claimed in the ‘280
`
`patent, including without limitation the invention in at least claim 1 of the ‘280 patent, (ii) which
`
`are not staple articles or commodities of commerce suitable for substantial noninfringing use,
`
`and (iii) where such components are uncombined in whole or in part, knowing that such
`
`components are so made or adapted and intending that such components will be combined
`
`outside of the United States in a manner that would infringe at least claim 1 of the ‘280 patent if
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`such combination occurred within the United States.
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`01:21300644.1
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`17.
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`Upon information and belief, Nevro has had actual and constructive knowledge of
`
`the ‘280 patent prior to the filing of this Complaint. Nevro has continued to infringe at least
`
`claim 1 of the ‘280 patent. Nevro’s infringement is reckless, knowing, deliberate, and willful.
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`18.
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`Boston Scientific has been damaged as a result of Nevro’s infringing conduct and
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`is entitled to recover damages that adequately compensate it for Nevro’s infringement, which, by
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`law, cannot be less than a reasonable royalty, together with interest and costs as fixed by this
`
`Court under 35 U.S.C. § 284.
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`COUNT II: INFRINGEMENT OF U.S. PATENT NO. 7,428,438
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`19.
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`20.
`
`Boston Scientific realleges paragraphs 1-18 above as if fully set forth herein.
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`The ‘438 patent, entitled “Systems And Methods For Providing Power To A
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`Battery In An Implantable Stimulator,” is a valid, enforceable patent that was duly issued by the
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`USPTO on September 23, 2008 in full compliance with Title 35 of the United States Code. A
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`true and correct copy of the ‘438 patent is attached as Exhibit B.
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`21.
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`BSNC is the assignee of the ‘438 patent with ownership of all substantial rights in
`
`the ‘438 patent, including the right to exclude others and to enforce, sue, and recover damages
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`for past and future infringements. BSC is the exclusive licensee of the ‘438 patent.
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`22.
`
`Nevro has directly infringed, and continues to directly infringe, at least claim 1 of
`
`the ‘438 patent in violation of 35 U.S.C. § 271(a) by, for example and without limitation,
`
`making, using, offering to sell, selling, and/or importing in and into the United States the Senza
`
`System.
`
`23.
`
`Nevro has actively induced others to infringe at least claim 1 of the ‘438 patent in
`
`violation of 35 U.S.C. § 271(b) by instructing others to use the Senza System. Nevro’s active
`
`inducement includes, for example and without limitation, marketing, selling, and offering to sell
`
`the Senza System, providing instructions on how to use the Senza System, and promoting the use
`
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`01:21300644.1
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`of the Senza System. Upon information and belief, Nevro has induced such infringement with
`
`the intent that one or more claims of the ‘438 patent be infringed.
`
`24.
`
`Nevro has contributed to infringement by others of at least claim 1 of the ‘438
`
`patent in violation of 35 U.S.C. § 271(c) by offering to sell, selling, and/or importing the Senza
`
`System and/or one or more components of the Senza System, which are components of a
`
`patented system and which constitute a material part of the inventions claimed in the ‘438 patent,
`
`including without limitation the invention in at least claim 1 of the ‘438 patent. Nevro has
`
`offered to sell, sold, and/or imported the Senza System and/or one or more components of the
`
`Senza System knowing the same to be especially made or especially adapted for use in an
`
`infringement of at least claim 1 of the ‘438 patent, and that the Senza System and/or one or more
`
`components of the Senza System are not staple articles or commodities of commerce suitable for
`
`substantial noninfringing use.
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`25.
`
`In violation of 35 U.S.C. § 271(f)(1), Nevro has supplied and/or caused to be
`
`supplied in or from the United States, and it continues to supply and/or cause to be supplied in or
`
`from the United States, the Senza System and/or one or more components of the Senza System,
`
`which constitute all or a substantial portion of the components of the inventions claimed in the
`
`‘438 patent, including without limitation the invention in at least claim 1 of the ‘438 patent,
`
`where such components are uncombined in whole or in part, and in such manner as to actively
`
`induce the combination of such components outside of the United States in a manner that would
`
`infringe at least claim 1 of the ‘438 patent if such combination occurred within the United States.
`
`26.
`
`In violation of 35 U.S.C. § 271(f)(2), Nevro has supplied and/or caused to be
`
`supplied in or from the United States, and it continues to supply and/or cause to be supplied in or
`
`from the United States, the Senza System and/or one or more components of the Senza System,
`
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`01:21300644.1
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`(i) which are especially made or especially adapted for use in the inventions claimed in the ‘438
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`patent, including without limitation the invention in at least claim 1 of the ‘438 patent, (ii) which
`
`are not staple articles or commodities of commerce suitable for substantial noninfringing use,
`
`and (iii) where such components are uncombined in whole or in part, knowing that such
`
`components are so made or adapted and intending that such components will be combined
`
`outside of the United States in a manner that would infringe at least claim 1 of the ‘438 patent if
`
`such combination occurred within the United States.
`
`27.
`
`Upon information and belief, Nevro has had actual and constructive knowledge of
`
`the ‘438 patent prior to the filing of this Complaint. Nevro has continued to infringe at least
`
`claim 1 of the ‘438 patent. Nevro’s infringement is reckless, knowing, deliberate, and willful.
`
`28.
`
`Boston Scientific has been damaged as a result of Nevro’s infringing conduct and
`
`is entitled to recover damages that adequately compensate it for Nevro’s infringement, which, by
`
`law, cannot be less than a reasonable royalty, together with interest and costs as fixed by this
`
`Court under 35 U.S.C. § 284.
`
`COUNT III: INFRINGEMENT OF U.S. PATENT NO. 7,437,193
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`29.
`
`30.
`
`Boston Scientific realleges paragraphs 1-28 above as if fully set forth herein.
`
`The ‘193 patent, entitled “Microstimulator Employing Improved Recharging
`
`Reporting And Telemetry Techniques,” is a valid, enforceable patent that was duly issued by the
`
`USPTO on October 14, 2008 in full compliance with Title 35 of the United States Code. A true
`
`and correct copy of the ‘193 patent is attached as Exhibit C.
`
`31.
`
`BSNC is the assignee of the ‘193 patent with ownership of all substantial rights in
`
`the ‘193 patent, including the right to exclude others and to enforce, sue, and recover damages
`
`for past and future infringements. BSC is the exclusive licensee of the ‘193 patent.
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`01:21300644.1
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`32.
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`Nevro has directly infringed, and continues to directly infringe, at least claim 1 of
`
`the ‘193 patent in violation of 35 U.S.C. § 271(a) by, for example and without limitation,
`
`making, using, offering to sell, selling, and/or importing in and into the United States the Senza
`
`System.
`
`33.
`
`Nevro has actively induced others to infringe at least claim 1 of the ‘193 patent in
`
`violation of 35 U.S.C. § 271(b) by instructing others to use the Senza System. Nevro’s active
`
`inducement includes, for example and without limitation, marketing, selling, and offering to sell
`
`the Senza System, providing instructions on how to use the Senza System, and promoting the use
`
`of the Senza System. Upon information and belief, Nevro has induced such infringement with
`
`the intent that one or more claims of the ‘193 patent be infringed.
`
`34.
`
`Nevro has contributed to infringement by others of at least claim 1 of the ‘193
`
`patent in violation of 35 U.S.C. § 271(c) by offering to sell, selling, and/or importing the Senza
`
`System and/or one or more components of the Senza System, which are components of a
`
`patented device and which constitute a material part of the inventions claimed in the ‘193 patent,
`
`including without limitation the invention in at least claim 1 of the ‘193 patent. Nevro has
`
`offered to sell, sold, and/or imported the Senza System and/or one or more components of the
`
`Senza System knowing the same to be especially made or especially adapted for use in an
`
`infringement of at least claim 1 of the ‘193 patent, and that the Senza System and/or one or more
`
`components of the Senza System are not staple articles or commodities of commerce suitable for
`
`substantial noninfringing use.
`
`35.
`
`In violation of 35 U.S.C. § 271(f)(1), Nevro has supplied and/or caused to be
`
`supplied in or from the United States, and it continues to supply and/or cause to be supplied in or
`
`from the United States, the Senza System and/or one or more components of the Senza System,
`
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`01:21300644.1
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`which constitute all or a substantial portion of the components of the inventions claimed in the
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`‘193 patent, including without limitation the invention in at least claim 1 of the ‘193 patent,
`
`where such components are uncombined in whole or in part, and in such manner as to actively
`
`induce the combination of such components outside of the United States in a manner that would
`
`infringe at least claim 1 of the ‘193 patent if such combination occurred within the United States.
`
`36.
`
`In violation of 35 U.S.C. § 271(f)(2), Nevro has supplied and/or caused to be
`
`supplied in or from the United States, and it continues to supply and/or cause to be supplied in or
`
`from the United States, the Senza System and/or one or more components of the Senza System,
`
`(i) which are especially made or especially adapted for use in the inventions claimed in the ‘193
`
`patent, including without limitation the invention in at least claim 1 of the ‘193 patent, (ii) which
`
`are not staple articles or commodities of commerce suitable for substantial noninfringing use,
`
`and (iii) where such components are uncombined in whole or in part, knowing that such
`
`components are so made or adapted and intending that such components will be combined
`
`outside of the United States in a manner that would infringe at least claim 1 of the ‘193 patent if
`
`such combination occurred within the United States.
`
`37.
`
`Upon information and belief, Nevro has had actual and constructive knowledge of
`
`the ‘193 patent prior to the filing of this Complaint. Nevro has continued to infringe at least
`
`claim 1 of the ‘438 patent. Nevro’s infringement is reckless, knowing, deliberate, and willful.
`
`38.
`
`Boston Scientific has been damaged as a result of Nevro’s infringing conduct and
`
`is entitled to recover damages that adequately compensate it for Nevro’s infringement, which, by
`
`law, cannot be less than a reasonable royalty, together with interest and costs as fixed by this
`
`Court under 35 U.S.C. § 284.
`
`COUNT IV: INFRINGEMENT OF U.S. PATENT NO. 7,587,241
`
`39.
`
`Boston Scientific realleges paragraphs 1-38 above as if fully set forth herein.
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`40.
`
`The ‘241 patent, entitled “Method For Controlling Telemetry In An Implantable
`
`Medical Device Based On Power Source Capacity,” is a valid, enforceable patent that was duly
`
`issued by the USPTO on September 8, 2009 in full compliance with Title 35 of the United States
`
`Code. A true and correct copy of the ‘241 patent is attached as Exhibit D.
`
`41.
`
`BSNC is the assignee of the ‘241 patent with ownership of all substantial rights in
`
`the ‘241 patent, including the right to exclude others and to enforce, sue, and recover damages
`
`for past and future infringements. BSC is the exclusive licensee of the ‘241 patent.
`
`42.
`
`Nevro has directly infringed, and continues to directly infringe, at least claim 1 of
`
`the ‘241 patent in violation of 35 U.S.C. § 271(a) by, for example and without limitation,
`
`making, using, offering to sell, selling, and/or importing in and into the United States the Senza
`
`System.
`
`43.
`
`Nevro has actively induced others to infringe at least claim 1 of the ‘241 patent in
`
`violation of 35 U.S.C. § 271(b) by instructing others to use the Senza System. Nevro’s active
`
`inducement includes, for example and without limitation, marketing, selling, and offering to sell
`
`the Senza System, providing instructions on how to use the Senza System, and promoting the use
`
`of the Senza System. Upon information and belief, Nevro has induced such infringement with
`
`the intent that one or more claims of the ‘241 patent be infringed.
`
`44.
`
`Nevro has contributed to infringement by others of at least claim 1 of the ‘241
`
`patent in violation of 35 U.S.C. § 271(c) by offering to sell, selling, and/or importing the Senza
`
`System and/or one or more components of the Senza System, which are components of a
`
`patented combination and which constitute a material part of the inventions claimed in the ‘241
`
`patent, including without limitation the invention in at least claim 1 of the ‘241 patent. Nevro
`
`has offered to sell, sold, and/or imported the Senza System and/or one or more components of
`
`
`01:21300644.1
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`the Senza System knowing the same to be especially made or especially adapted for use in an
`
`infringement of at least claim 1 of the ‘241 patent, and that the Senza System and/or one or more
`
`components of the Senza System are not staple articles or commodities of commerce suitable for
`
`substantial noninfringing use.
`
`45.
`
`Upon information and belief, Nevro has had actual and constructive knowledge of
`
`the ‘241 patent prior to the filing of this Complaint. Nevro has continued to infringe at least
`
`claim 1 of the ‘241 patent. Nevro’s infringement is reckless, knowing, deliberate, and willful.
`
`46.
`
`Boston Scientific has been damaged as a result of Nevro’s infringing conduct and
`
`is entitled to recover damages that adequately compensate it for Nevro’s infringement, which, by
`
`law, cannot be less than a reasonable royalty, together with interest and costs as fixed by this
`
`Court under 35 U.S.C. § 284.
`
`COUNT V: INFRINGEMENT OF U.S. PATENT NO. 7,891,085
`
`47.
`
`48.
`
`Boston Scientific realleges paragraphs 1-48 above as if fully set forth herein.
`
`The ‘085 patent, entitled “Electrode Array Assembly And Method Of Making
`
`Same,” is a valid, enforceable patent that was duly issued by the USPTO on February 22, 2011 in
`
`full compliance with Title 35 of the United States Code. A true and correct copy of the ‘085
`
`patent is attached as Exhibit E.
`
`49.
`
`BSNC is the assignee of the ‘085 patent with ownership of all substantial rights in
`
`the ‘085 patent, including the right to exclude others and to enforce, sue, and recover damages
`
`for past and future infringements. BSC is the exclusive licensee of the ‘085 patent.
`
`50.
`
`Nevro has directly infringed, and continues to directly infringe, at least claim 1 of
`
`the ‘085 patent in violation of 35 U.S.C. § 271(a) by, for example and without limitation, making
`
`in the United States the Senza System, including its leads.
`
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`51.
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`Nevro has actively induced others to infringe at least claim 1 of the ‘085 patent in
`
`violation of 35 U.S.C. § 271(b) by instructing others to make and/or import the Senza System,
`
`including its leads. Nevro’s active inducement includes, for example and without limitation,
`
`offering and contracting to purchase the Senza System, including its leads, and providing
`
`instructions on how to make the Senza System, including its leads. Upon information and belief,
`
`Nevro has induced such infringement with the intent that one or more claims of the ‘085 patent
`
`be infringed.
`
`52.
`
`In violation of 35 U.S.C. § 271(g), Nevro has imported and/or offered to sell,
`
`sold, and/or used within the United States, and it continues to import and/or offer to sell, sell,
`
`and/or use within the United States, the Senza System, including its leads, which is made
`
`according to the invention of at least claim 1 of the ‘085 patent.
`
`53.
`
`Upon information and belief, Nevro has had actual and constructive knowledge of
`
`the ‘193 patent prior to the filing of this Complaint. Nevro has continued to infringe at least
`
`claim 1 of the ‘438 patent. Nevro’s infringement is reckless, knowing, deliberate, and willful.
`
`54.
`
`Boston Scientific has been damaged as a result of Nevro’s infringing conduct and
`
`is entitled to recover damages that adequately compensate it for Nevro’s infringement, which, by
`
`law, cannot be less than a reasonable royalty, together with interest and costs as fixed by this
`
`Court under 35 U.S.C. § 284.
`
`COUNT VI: INFRINGEMENT OF U.S. PATENT NO. 8,019,439
`
`55.
`
`56.
`
`Boston Scientific realleges paragraphs 1-54 above as if fully set forth herein.
`
`The ‘439 patent, entitled “Lead Assembly And Method Of Making Same,” is a
`
`valid, enforceable patent that was duly issued by the USPTO on September 13, 2011 in full
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`compliance with Title 35 of the United States Code. A true and correct copy of the ‘439 patent is
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`attached as Exhibit F.
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`57.
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`BSNC is the assignee of the ‘439 patent with ownership of all substantial rights in
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`the ‘439 patent, including the right to exclude others and to enforce, sue, and recover damages
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`for past and future infringements. BSC is the exclusive licensee of the ‘439 patent.
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`58.
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`Nevro has directly infringed, and continues to directly infringe, at least claims 1,
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`11, and 26 of the ‘439 patent in violation of 35 U.S.C. § 271(a) by, for example and without
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`limitation, making, using, offering to sell, selling, and/or importing in and into the United States
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`the Senza System, including its leads.
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`59.
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`Nevro has actively induced others to infringe at least claims 1, 11, and 26 of the
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`‘439 patent in violation of 35 U.S.C. § 271(b) by instructing others to use, make, and/or import
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`the Senza System, including its leads. Nevro’s active inducement includes, for example and
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`without limitation, marketing, selling, and offering to sell the Senza System, including its leads,
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`offering and contracting to purchase the Senza System, including its leads, providing instructions
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`on how to make and use the Senza System, including its leads, and promoting the use of the
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`Senza System, including its leads. Upon information and belief, Nevro has induced such
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`infringement with the intent that one or more claims of the ‘439 patent be infringed.
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`60.
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`Nevro has contributed to infringement by others of at least claims 11 and 26 of
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`the ‘439 patent in violation of 35 U.S.C. § 271(c) by offering to sell, selling, and/or importing the
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`Senza System and/or one or more components of the Senza System, including its leads and
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`subcomponents thereof, which are components of a patented combination and which constitute a
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`material part of the inventions claimed in the ‘439 patent, including without limitation the
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`inventions in at least claims 11 and 26 of the ‘439 patent. Nevro has offered to sell, sold, and/or
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`imported the Senza System and/or one or more components of the Senza System, including its
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`leads and subcomponents thereof, knowing the same to be especially made or especially adapted
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`for use in an infringement of at least claims 11 and 26 of the ‘439 patent, and that the Senza
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`System and/or one or more components of the Senza System, including its leads and
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`subcomponents thereof, are not staple articles or commodities of commerce suitable for
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`substantial noninfringing use.
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`61.
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`In violation of 35 U.S.C. § 271(f)(1), Nevro has supplied and/or caused to be
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`supplied in or from the United States, and it continues to supply and/or cause to be supplied in or
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`from the United States, the Senza System and/or one or more components of the Senza System,
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`including its leads and subcomponents thereof, which constitute all or a substantial portion of the
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`components of the inventions claimed in the ‘439 patent, including without limitation the
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`inventions in at least claims 11 and 26 of the ‘439 patent, where such components are
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`uncombined in whole or in part, and in such manner as to actively induce the combination of
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`such components outside of the United States in a manner that would infringe at least claims 11
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`and 26 of the ‘439 patent if such combination occurred within the United States.
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`62.
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`In violation of 35 U.S.C. § 271(f)(2), Nevro has supplied and/or caused to be
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`supplied in or from the United States, and it continues to supply and/or cause to be supplied in or
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`from the United States, the Senza System and/or one or more components of the Senza System,
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`including its leads and subcomponents thereof, (i) which are especially made or especially
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`adapted for use in the inventions claimed in the ‘439 patent, including without limitation the
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`inventions in at least claims 11 and 26 of the ‘439 patent, (ii) which are not staple articles or
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`commodities of commerce suitable for substantial noninfringing use, and (iii) where such
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`components are uncombined in whole or in part, knowing that such components are so made or
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`adapted and intending that such components will be combined outside of the United States in a
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`manner that would infringe at least claims 11 and 26 of the ‘439 patent if such combination
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`occurred within the United States.
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`63.
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`In violation of 35 U.S.C. § 271(g), Nevro has imported and/or offered to sell,
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`sold, and/or used within the United States, and it continues to import and/or offer to sell, sell,
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`and/or use within the United States, the Senza System, including its leads, which is made
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`according to the invention of at least claim 1 of the ‘439 patent.
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`64.
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`Upon information and belief, Nevro has had actual and constructive knowledge of
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`the ‘439 patent prior to the filing of this Complaint. Nevro has continued to infringe at least
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`claims 1, 11, and 26 of the ‘439 patent. Nevro’s infringement is reckless, knowing, deliberate,
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`and willful.
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`65.
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`Boston Scientific has been damaged as a result of Nevro’s infringing conduct and
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`is entitled to recover damages that adequately compensate it for Nevro’s infringement, which, by
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`law, cannot be less than a reasonable royalty, together with interest and costs as fixed by this
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`Court under 35 U.S.C. § 284.
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`COUNT VII: INFRINGEMENT OF U.S. PATENT NO. 8,644,933
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`Boston Scientific realleges paragraphs 1-65 above as if fully set forth herein.
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`The ‘933 patent, entitled “Techniques For Controlling Charging Of Batteries In
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`66.
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`67.
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`An External Charger And An Implantable Medical Device,” is a valid, enforceable patent that
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`was duly issued by the USPTO on February 4, 2014 in full compliance with Title 35 of the
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`United States Code. A true and correct copy of the ‘933 patent is attached as Exhibit G.
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`68.
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`BSNC is the assignee of the ‘933 patent with ownership of all substantial rights in
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`the ‘933 patent, including the right to exclude others and to enforce, sue, and recover damages
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`for past and future infringements. BSC is the exclusive licensee of the ‘933 patent.
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`69.
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`Nevro has directly infringed, and continues to directly infringe, at least claim 1 of
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`the ‘933 patent in violation of 35 U.S.C. § 271(a) by, for example and without limitation,
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`making, using, offering to sell, selling, and/or importing in and into the United States the Senza
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`System.
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`70.
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`Nevro has actively induced others to infringe at least claim 1 of the ‘933 patent in
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`violation of 35 U.S.C. § 271(b) by instructing others to use the Senza System. Nevro’s active
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`inducement includes, for example and without limitation, marketing, selling, and offering to sell
`
`the Senza System, providing instructions on how to use the Senza System, and promoting the use
`
`of the Senza System. Upon information and belief, Nevro has induced such infringement with
`
`the intent that one or more claims of the ‘933 patent be infringed.
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`71.
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`Nevro has contributed to infringement by others of at least claim 1 of the ‘933
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`patent in violation of 35 U.S.C. § 271(c) by offering to sell, selling, and/or importing the Senza
`
`System and/or one or more components of the Senza System, which are components of a
`
`patented combination and which constitute a material part of the inventions claimed in the ‘933
`
`patent, including without limitation the invention in at least claim 1 of the ‘933 patent. Nevro
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`has offered to sell, sold, and/or imported the Senza System and/or one or more components of
`
`the Senza System knowing the same to be especially made or especially adapted for use in an
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`infringement of at least claim 1 of the ‘933 patent, and t