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Following all of the latest IP developments in life sciences.

 

Raising An Argument For The First Time On Appeal Is Fraught With Danger

There is always a danger in raising an argument for the first time on appeal. The Federal Circuit’s recent decision in Boston Scientific Neuromodulation v. Nevro (No. 2019-1584) provides yet another example of this particular peril. 

The case began with Nevro filing an IPR petition challenging the validity of a Boston Scientific patent that claimed an implantable medical device that stopped “listening for” one type of “telemetry” (i.e. a wireless signal to program the device) when the battery level dropped too low, but continued “listening for” a second type of “telemetry” from the medical device’s wireless charging unit. 

In a preliminary response, Boston Scientific proposed a construction of “telemetry” to mean the “transmission of data or information,” which Boston Scientific contended the prior art did not disclose the second type of telemetry—the signal from the external wireless battery charger.

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