Case 1:16-cv-01163-CFC-CJB Document 290 Filed 03/10/20 Page 1 of 17 PageID #: 8762
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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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`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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`C.A. No. 16-1163-CFC
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`C.A. No. 18-644-CFC-CJB
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`PLAINTIFFS’ REPLY BRIEF IN FURTHER SUPPORT OF THEIR MOTION
`TO CONSOLIDATE, BIFURCATE, AND PARTIALLY LIFT STAY
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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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`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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`C.A. No. 16-1163-CFC
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`C.A. No. 18-644-CFC-CJB
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`PLAINTIFFS’ REPLY BRIEF IN FURTHER SUPPORT OF THEIR MOTION
`TO CONSOLIDATE, BIFURCATE, AND PARTIALLY LIFT STAY
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`Case 1:16-cv-01163-CFC-CJB Document 290 Filed 03/10/20 Page 2 of 17 PageID #: 8763
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`Karen L. Pascale (#2903)
`Pilar G. Kraman (#5199)
`YOUNG CONAWAY STARGATT &
`TAYLOR LLP
`Rodney Square
`1000 North King Street
`Wilmington, DE 19801
`(302) 571-6600
`kpascale@ycst.com
`pkraman@ycst.com
`
`Attorneys for Plaintiffs Boston Scientific
`Corporation and Boston Scientific
`Neuromodulation Corp.
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`March 10, 2020
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`Of Counsel:
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`Matthew M. Wolf
`Edward Han
`Marc Cohn
`Amy DeWitt
`ARNOLD & PORTER KAYE SCHOLER LLP
`601 Massachusetts Ave., NW
`Washington, DC 20001-3743
`(202) 942-5000
`Matthew.Wolf@arnoldporter.com
`Edward.Han@arnoldporter.com
`Marc.Cohn@arnoldporter.com
`Amy.DeWitt@arnoldporter.com
`
`
`Krista M. Carter
`Thomas T. Carmack
`ARNOLD & PORTER KAYE SCHOLER LLP
`3000 El Camino Real
`Five Palo Alto Square | Suite 500
`Palo Alto, CA 94306-2112
`(650) 319-4500
`Krista.Carter@arnoldporter.com
`Tom.Carmack@arnoldporter.com
`
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`Case 1:16-cv-01163-CFC-CJB Document 290 Filed 03/10/20 Page 3 of 17 PageID #: 8764
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`TABLE OF CONTENTS
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`PRELIMINARY STATEMENT ..................................................................... 1
`ARGUMENT ................................................................................................... 4
`A.
`The Court Should Keep The October 2021 Trial Date For The
`IPR-Free Patents And Any Surviving Appealed Patents ...................... 4
`The Trade Secret Claim Also Should Proceed To Trial On The
`Already-Scheduled October 18, 2021 Date .......................................... 6
`1.
`The Trade Secret Claim Should Be Consolidated With The
`IPR-Free Patent Claims ............................................................... 6
`Like The IPR-Free Patent Claims, The Trade Secret Claim
`Should Not Be Stayed ................................................................. 7
`III. CONCLUSION .............................................................................................. 10
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`B.
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`2.
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`I.
`II.
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`i
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`Case 1:16-cv-01163-CFC-CJB Document 290 Filed 03/10/20 Page 4 of 17 PageID #: 8765
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`TABLE OF AUTHORITIES
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`Cases
`Personalized User Model, L.L.P. v. Google, Inc.,
`No. 09-525-LPS, 2012 WL 5379106 (D. Del. Oct. 31, 2012) .............................10
`Rules
`Fed. R. Civ. P. 1 .......................................................................................................10
`Fed. R. Civ. P. 42 ....................................................................................................... 6
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`ii
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`Case 1:16-cv-01163-CFC-CJB Document 290 Filed 03/10/20 Page 5 of 17 PageID #: 8766
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`Plaintiffs Boston Scientific Corp. and Boston Scientific Neuromodulation
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`Corp. (collectively, “Boston Scientific”) respectfully submit this reply brief in
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`support of their motion to consolidate, bifurcate, and partially lift stay. (D.I. 52.)1
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`I.
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`PRELIMINARY STATEMENT
`Boston Scientific invested hundreds of millions of dollars developing its
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`market-leading neuromodulation business, resulting in patents and know-how that
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`served as the foundation for its success. Rather than build its own business, Nevro
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`infringed sixteen Boston Scientific patents and stole confidential Boston Scientific
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`trade secrets. The trade secrets were not limited in nature—Nevro’s Mr. Thacker
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`stole all manner of trade secrets that gave Nevro a head start across its whole
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`enterprise, including clinical protocols, software validation tests, salesperson lists,
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`and customer Q&A scripts. Nevro’s suggestion that these trade secrets are stale is
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`belied by the fact their misappropriation accelerated Nevro’s initial product launch
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`and, consequently, its entire business trajectory and revenue curve. Nevro’s
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`exploitation of Boston Scientific’s technology long ago—unbeknownst to Boston
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`Scientific until it was informed about the documents stolen by Mr. Thacker—gave
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`Nevro a head start from which it is still reaping profits today. Boston Scientific
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`deserves its day in court to hold Nevro accountable for its actions.
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`1 Docket citations are to the C.A. No. 18-644-CFC-CJB action.
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`Case 1:16-cv-01163-CFC-CJB Document 290 Filed 03/10/20 Page 6 of 17 PageID #: 8767
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`In an effort to avoid trial at all costs, Nevro attempts to paint this dispute as
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`one of multiple, unrelated claims. This is a false narrative, as all of Boston
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`Scientific’s claims originate from the same products, developed by the same team,
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`at the same company. Boston Scientific’s allegations of wrongdoing involve the
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`operation of Nevro’s products and the circumstances around their development. A
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`consolidated trial on the trade secret claim and the 2016 patent claims would make
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`the best and fairest use of the Court’s and the parties’ time.
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`In the 2016 case, the PTAB rejected Nevro’s attempt to institute inter partes
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`review (“IPR”) of six asserted patents (the “IPR-Free Patents”). Two asserted
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`patents are on appeal from IPR proceedings before the Federal Circuit (the
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`“Appealed Patents”) (collectively, the “2016 Patents”). It is undisputed that the
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`IPR-Free Patents are ready for trial. Nor is there any reason why Boston
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`Scientific’s trade secret claim, which involves the same products and parties,
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`cannot be ready for a trial in October 2021, as already contemplated by the Court’s
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`scheduling order. Combining a trial of the IPR-Free Patent claims with the trade
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`secret claim in October 2021 would avoid years of additional delay on top of the
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`multi-year delay that Boston Scientific has already endured, and it will likely
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`resolve most of the issues between the parties, even if the status of the Appealed
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`Patents remains unsettled for now. Indeed, Nevro concedes that the Federal
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`Circuit’s decision regarding those two patents is “only months away.” (D.I. 67 at
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`2
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`Case 1:16-cv-01163-CFC-CJB Document 290 Filed 03/10/20 Page 7 of 17 PageID #: 8768
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`6.) In all likelihood, therefore, the Appealed Patents will be ready to proceed in
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`advance of the Court’s scheduled Markman hearing in January 2021 and well in
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`advance of the October 2021 trial date.
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`In insisting that the IPR-Free Patent claims, the trade secret claim, and the
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`Appealed Patent claims should all remain on hiatus, Nevro relies only on IPRs of
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`the patents asserted against Nevro in the 2018 case (the “2018 Patents”). Although
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`Boston Scientific has agreed to a stay of those patent claims, they have nothing to
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`do with the IPR-Free Patents from 2016. They have different inventors, different
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`specifications, different claims, different priority dates, and different prior art. The
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`2018 Patents are similarly unrelated to Boston Scientific’s trade secret claim.
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`More to the point, nothing decided in the Patent Office proceedings regarding the
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`2018 Patents will simplify a trial on the IPR-Free Patents or the trade secret
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`claim—the first stay factor (simplification) does not weigh in favor of staying
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`these claims.
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`The second (stage) and third (prejudice) factors weigh strongly against a
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`stay. With respect to the “stage” of these claims, because a decision from the
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`Federal Circuit on the Appealed Patents is imminent (as Nevro concedes), the
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`parties will have plenty of time to incorporate the effects of that decision into the
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`case before an October 2021 trial. And conveniently, the parties have already
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`3
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`Case 1:16-cv-01163-CFC-CJB Document 290 Filed 03/10/20 Page 8 of 17 PageID #: 8769
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`completed fact discovery and expert reports on the IPR-Free and Appealed
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`Patents—they can take discovery on the trade secret claim in the meantime.
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`If the stay requested by Nevro is granted, Boston Scientific will be severely
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`prejudiced. Boston Scientific seeks not only money damages for infringement of
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`the IPR-Free and Appealed Patents but also a permanent injunction against their
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`continued infringement. Boston Scientific’s Second Amended Complaint also
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`requests injunctive relief relating to Nevro’s trade secret misappropriation. Each
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`day that Nevro uses Boston Scientific’s patented technology to compete against it
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`and exploits the head start that it obtained from misappropriating Boston
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`Scientific’s confidential trade secrets compounds Boston Scientific’s prejudice.
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`Accordingly, and for the reasons set forth in Boston Scientific’s opening
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`brief, the Court should (i) consolidate the 2016 and 2018 actions; (ii) lift the stay of
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`the IPR-Free Patent claims; (iii) stay all other patent claims and counterclaims; and
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`(iv) order that the parties proceed to a trial beginning October 18, 2021 on the IPR-
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`Free Patents and trade secret claim.
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`II. ARGUMENT
`A. The Court Should Keep The October 2021 Trial Date For
`The IPR-Free Patents And Any Surviving Appealed Patents
`The Patent Office rejected Nevro’s petitions for IPR of the IPR-Free Patents;
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`Boston Scientific’s claims for infringement of those patents have proceeded
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`through expert discovery and are nearly ready for trial. While Nevro’s opposition
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`Case 1:16-cv-01163-CFC-CJB Document 290 Filed 03/10/20 Page 9 of 17 PageID #: 8770
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`rests primarily on its argument that a trial on the IPR-Free Patents would be
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`impractical given that the Appealed Patents justify the majority of Boston
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`Scientific’s patent damages, Nevro acknowledges that the Federal Circuit’s
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`decisions on the Appealed Patents are “only months away.” (D.I. 67 at 6.) If that
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`court decides both of the Appealed Patents are invalid, then there will be no need
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`for a trial on those patents and no reason to delay a trial on the IPR-Free Patent
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`claims and the trade secret claim. Should one or both of the Appealed Patents
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`survive the appeal, then there will likely be adequate time under the current
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`schedule for the case to move forward on those patents as well as the IPR-Free
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`Patents.2 There is no reason to give up the October 2021 trial date.
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`Given the demands on the Court’s calendar, the option proposed by Nevro—
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`i.e., that the Court vacate the October 2021 trial date and wait for the Federal
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`Circuit’s decisions before setting another trial date—would likely result in many
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`more months, if not more than a year, of delay. By the time Boston Scientific
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`could have its day in court, its claims will have been pending for more than five
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`years while Nevro continues to reap the benefits of its illegal conduct at Boston
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`Scientific’s expense.3
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`2 If the result of the appeals is something other than the validity or invalidity of the
`patents, then this Court and the parties can decide how to proceed at that time.
`3 Boston Scientific showed that Nevro’s market share was growing at the expense
`of Boston Scientific and only a few other competitors. (D.I. 53 at 14-15.) In
`response, Nevro insists that it could not be stealing Boston Scientific’s customers
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`5
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`Case 1:16-cv-01163-CFC-CJB Document 290 Filed 03/10/20 Page 10 of 17 PageID #: 8771
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`The Court’s Markman date of January 6, 2021 (D.I. 51 at 13) can also be
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`preserved for the claim construction issues that the Court has not yet resolved.
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`Nevro suggests that there will not be time for supplementation of expert reports
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`after the Federal Circuit’s decisions (see D.I. 67 at 10), but that suggestion is belied
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`by the case schedule, which already contemplates expert discovery occurring after
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`the Markman hearing (see D.I. 51 at 14). And, in any case, the parties have
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`already proceeded through expert reports on the 2016 Patents without the benefit
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`of all of the Court’s claim constructions. It is highly likely that the Federal
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`Circuit’s decisions will be rendered in time for a January 2021 Markman hearing
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`and an October 2021 trial.
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`B.
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`The Trade Secret Claim Also Should Proceed To Trial On
`The Already-Scheduled October 18, 2021 Date
`1.
`The Trade Secret Claim Should Be Consolidated
`With The IPR-Free Patent Claims
`The trade secret claim clearly should be consolidated with the IPR-Free
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`Patent claims. Both sets of claims involve the same products from the same parties
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`in the same market. As a result, Rule 42’s standard for consolidation, which
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`requires only that the claims share common questions of fact, is satisfied. (D.I. 53
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`because Boston Scientific’s market share rose since 2017 and is projected to
`remain flat. (D.I. 67 at 16.) Nevro’s argument is illogical; Boston Scientific’s
`market share could be even larger if Nevro had not infringed Boston Scientific’s
`patents and misappropriated its trade secrets.
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`6
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`Case 1:16-cv-01163-CFC-CJB Document 290 Filed 03/10/20 Page 11 of 17 PageID #: 8772
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`at 11 n.5.) In claiming that the trade secret claim has “nothing to do with” the IPR-
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`Free Patent claims (D.I. 67 at 9), Nevro mischaracterizes Boston Scientific’s brief,
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`in which it stated that the trade secret claim has “nothing to do with” the IPRs of
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`the 2018 Patents (D.I. 53 at 10); Boston Scientific never argued that there is no
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`overlap between the trade secret claim and the IPR-Free Patent claims. There is no
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`question that trying those claims together would make sense, nor is there any
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`significant risk of juror confusion if the trade secret claim and the IPR-Free Patent
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`claims are tried together. Consolidation would be efficient and permit the claims
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`that are ready for litigation now to proceed to trial in October 2021 without
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`additional months or years of delay.
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`2.
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`Like The IPR-Free Patent Claims, The Trade Secret
`Claim Should Not Be Stayed
`Nevro’s opposition focuses on whether the IPR-Free Patent claims should
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`proceed, while virtually ignoring the trade secret claim. Nevro makes no attempt
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`to show that any of the three factors relevant to a stay motion—simplification of
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`issues, stage of the case, and prejudice to the parties—weigh in favor of staying the
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`trade secret claim. None do.
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`Simplification: In taking the position that a stay of the trade secret claim
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`will simplify issues, Nevro points to a single, immaterial fact—i.e., that some of
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`the 2018 Patents name Mr. Thacker as a co-inventor. (D.I. 67 at 11-12.) The fact
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`that some discovery concerning Mr. Thacker may be relevant to both the trade
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`7
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`Case 1:16-cv-01163-CFC-CJB Document 290 Filed 03/10/20 Page 12 of 17 PageID #: 8773
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`secret claim and the 2018 Patent claims has absolutely no bearing on whether the
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`Patent Office’s review of some of Mr. Thacker’s patents will simplify the issues
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`related to the trade secret claim. It will not. The IPRs address the validity of the
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`patent claims in view of the cited prior art, an issue that is unrelated to Nevro’s
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`misappropriation of Boston Scientific’s trade secrets, and Nevro makes no attempt
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`to show that the patents themselves relate to any of the trade secrets that Nevro
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`misappropriated. Accordingly, there is no reason to hold the trade secret claim
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`hostage while the Patent Office reviews the 2018 Patents.
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`Stage of the case: Nevro wrongly claims that the trade secret claim is new.
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`(See id. at 12.) In fact, the claim has been pending for nearly two years (D.I. 1 at
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`32-38; D.I. 5 at 56-62), a trial date has already been set, and a case management
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`plan put in place (D.I. 51). Nevro’s responses to eight interrogatories and 57
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`requests for documents served by Boston Scientific a month ago are due on
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`March 11, 2020. (See D.I. 46.) Nevro makes much of the fact that the IPR-Free
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`Patent claims have advanced through fact discovery and most of expert discovery,
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`while the trade secret claim has not (D.I. 67 at 12-13), but this strongly supports
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`Boston Scientific’s proposal. While awaiting the rulings from the Federal Circuit
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`on the Appealed Patents, the parties can and should immediately commence
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`discovery on the trade secret claim, which is already set for trial in October 2021.
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`8
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`Case 1:16-cv-01163-CFC-CJB Document 290 Filed 03/10/20 Page 13 of 17 PageID #: 8774
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`When the appeal decisions come, the trade secret claim and 2016 Patent claims can
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`proceed to the October 2021 trial together.
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`Prejudice: Nevro gives short shrift to the prejudice to Boston Scientific
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`should the trade secret claim be stayed, dismissing the trade secrets as relating to
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`old and not “cutting edge” technology. (Id. at 15-16.) Not only does this argument
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`go to the merits of the claim (including the value of the asserted trade secrets), it
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`also misses the point. If the information constituting the trade secrets dates back
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`years, that is because the misappropriation, which Boston Scientific only
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`discovered in the course of its patent litigation against Nevro, took place years ago
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`when Mr. Thacker stole the trade secrets and took them to Nevro.
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`At Nevro, Mr. Thacker used Boston Scientific’s trade secrets to accelerate
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`and facilitate Nevro’s product development. For example, Boston Scientific will
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`show that, by relying on Boston Scientific’s confidential clinical protocols, Nevro
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`was able to perform its own clinical testing faster and with confidence that its tests
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`would likely be acceptable to the FDA. (See D.I. 12 at 4-5.) The same is true for
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`the software validation testing documents stolen by Mr. Thacker and the other
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`documents cited by Boston Scientific in its motion. (D.I. 53 at 9-10.) Boston
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`9
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`Case 1:16-cv-01163-CFC-CJB Document 290 Filed 03/10/20 Page 14 of 17 PageID #: 8775
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`Scientific should not have to compete against Nevro for several more years without
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`the ability to hold Nevro accountable for its misappropriation.4
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`Ignoring Federal Rule of Civil Procedure 1, which provides that the Rules
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`“should be construed, administered, and employed by the court and the parties to
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`secure the just, speedy, and inexpensive determination of every action and
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`proceeding,” Nevro suggests that delay does not matter unless the plaintiff has
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`sought or is likely to seek injunctive relief. (D.I. 67 at 13-20.) This simply is not
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`the law. See Personalized User Model, L.L.P. v. Google, Inc., No. 09-525-LPS,
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`2012 WL 5379106, at *2 (D. Del. Oct. 31, 2012) (“[I]t is the court’s foremost
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`obligation to see litigations through to trial in a timely and efficient manner.”
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`(quoting Vehicle IP, LLC v. Wal-Mart Stores, Inc., No. 10-503-SLR, 2010 WL
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`4823393, at *3 (D. Del. Nov. 22, 2010))). In any event, Boston Scientific is
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`seeking injunctive relief (D.I. 48 at 68-69), and discovery concerning the scope and
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`contours of Nevro’s misappropriation will determine the scope and contours of the
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`appropriate injunctive remedy.
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`III. CONCLUSION
`All three of the relevant factors weigh against a stay of Boston Scientific’s
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`trade secret claim and any further delay of its 2016 Patent claims. Boston
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`4 Nevro concedes that a stay of this case would likely result in at least three to four
`years of additional delay. (D.I. 67 at 18 (noting IPRs typically take three years and
`eight months to be resolved after the district court case begins).)
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`10
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`Case 1:16-cv-01163-CFC-CJB Document 290 Filed 03/10/20 Page 15 of 17 PageID #: 8776
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`Scientific respectfully requests that the Court reserve the already-scheduled
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`October 2021 date for a trial of those claims; in the meantime, the other patent
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`claims and counterclaims in this case should be stayed pending the IPRs.
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`
`
`YOUNG CONAWAY STARGATT &
`TAYLOR LLP
`
`/s/ Pilar G. Kraman
`Karen L. Pascale (#2903)
`Pilar G. Kraman (#5199)
`Rodney Square
`1000 North King Street
`Wilmington, Delaware 19801
`(302) 571-6600
`kpascale@ycst.com
`pkraman@ycst.com
`Attorneys for Plaintiffs
`
`
`
`
`DATED: March 10, 2020
`
`Matthew M. Wolf
`Edward Han
`Marc Cohn
`Amy DeWitt
`ARNOLD & PORTER KAYE SCHOLER LLP
`601 Massachusetts Ave., NW
`Washington, DC 20001-3743
`(202) 942-5000
`Matthew.Wolf@arnoldporter.com
`Edward.Han@arnoldporter.com
`Marc.Cohn@arnoldporter.com
`Amy.DeWitt@arnoldporter.com
`
`Krista M. Carter
`Thomas T. Carmack
`ARNOLD & PORTER KAYE SCHOLER LLP
`3000 El Camino Real
`Five Palo Alto Square | Suite 500
`Palo Alto, CA 94306-2112
`(650) 319-4500
`Krista.Carter@arnoldporter.com
`Tom.Carmack@arnoldporter.com
`
`
`11
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`Case 1:16-cv-01163-CFC-CJB Document 290 Filed 03/10/20 Page 16 of 17 PageID #: 8777
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`CERTIFICATE OF SERVICE
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`I, Pilar G. Kraman, Esquire, hereby certify that on March 10, 2020, I caused
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`to be electronically filed a true and correct copy of the foregoing document with
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`the Clerk of the Court using CM/ECF (which will send notification that such filing
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`is available for viewing and downloading to all registered counsel), and in addition
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`caused true and correct copies of the foregoing document to be served upon the
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`following counsel of record by electronic mail:
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`rsmith@mnat.com
`mflynn@mnat.com
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`Attorneys for Defendant Nevro Corp.:
`Rodger D. Smith II
`Michael J. Flynn
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899-1347
`
`Bradford J. Badke
`Ching-Lee Fukuda
`Ketan V. Patel
`Sharon Lee
`SIDLEY AUSTIN LLP
`787 Seventh Avenue
`New York, NY 10019
`Thomas A. Broughan III
`SIDLEY AUSTIN LLP
`1501 K Street, N.W.
`Washington, DC 20005
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`
`
`
`
`
`jbadke@sidley.com
`clfukuda@sidley.com
`ketan.patel@sidley.com
`sharon.lee@sidley.com
`
`tbroughan@sidley.com
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`
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`
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`Case 1:16-cv-01163-CFC-CJB Document 290 Filed 03/10/20 Page 17 of 17 PageID #: 8778
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` ngreenblatt@sidley.com
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`March 10, 2020
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`26056496.1
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`2
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`Nathan A. Greenblatt
`SIDLEY AUSTIN LLP
`1001 Page Mill Road Building 1
`Palo Alto, CA 94304
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`Michael A. Jacobs mjacobs@mofo.com
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, CA 94105-2482
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`Kenneth A. Kuwayti
`MORRISON & FOERSTER LLP
`755 Page Mill Road
`Palo Alto, CA 94304-1018
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`Bita Rahebi brahebi@mofo.com
`MORRISON & FOERSTER LLP
`707 Wilshire Boulevard
`Los Angeles, CA 90017-3543
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`kkuwayti@mofo.com
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`YOUNG CONAWAY STARGATT & TAYLOR,
`LLP
`/s/ Pilar G. Kraman
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`Karen L. Pascale (No. 2903)
`[kpascale@ycst.com]
`Pilar G. Kraman (#5199)
`[pkraman@ycst.com]
`Rodney Square
`1000 North King Street
`Wilmington, Delaware 19801
`Telephone: 302-571-6600
`Attorneys for Plaintiffs,
`Boston Scientific Corporation
`and Boston Scientific Neuromodulation
`Corp.
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