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This podcast's purpose is to bring together the field of neuroprosthetics/brain machine interfaces/brain implants in an understandable conversation about the current topics and breakthroughs.

We hope to replace needing to read scientific papers on new research in an easy to digest way.

People can share thoughts or ideas to facilitate 'idea sex' to make the field of brain implants a smaller and more personal space.

Oct 28, 2019

Joe Bird is a lawyer specializing in patent litigation, and works for the firm Maynard Cooper & Gale. In this episode, he discusses the current lawsuit between Nevro and Boston Scientific for a high-frequency spinal cord stimulation device, he gives a general overview of patent law and how patents are enforced and litigated, and also discusses what this lawsuit means for the neurotech industry.

Top three takeaways:

  1. Patent litigation is a very unique field of law, with a lot of special rules and proceedings, and can also be very expensive.
  2. Patent protection is very important, and can be a driving factor in the success of a company or industry.
  3. The Nevro vs Boston Scientific lawsuit has vast implications for the field of neurotechnology (particularly for spinal cord stimulation). Those in this industry should be aware that this could be a very costly part of entering the industry.

Show notes:

[0:00] Ladan introduces the episode and the guest, Joe Bird, a lawyer who specializes in patent litigation.

[1:27] Bird mentions that he is a lawyer working for a firm in Birmingham and specializes in patent litigation, and discusses his previous experience working in law.

[3:54] Bird discusses the emerging neurotech industry and how patent litigation in this industry is emerging.

[5:37] Bird lays down the groundwork for understanding the lawsuit between Nevro and Boston Scientific

[6:45] Bird gives an overview of how patents are administered and how patent litigation is carried out

[8:00] Bird discusses high-frequency stimulation and how it makes the product unique

[9:40] Bird discusses how Boston Scientific is challenging Nevro’s patent and discusses the prior art involved. Prior art serves a very important purpose in patent claims.

[12:00] Bird discusses patent claims, how they are made, what the rules are behind making them, and how they are unique

[14:30] Bird discuss claim construction and how patents are enforced

[15:45] Bird discusses the patent claim in the Nevro litigation and what it says

[17:10] A problem found with the patent claim is: the phrase “an implantable signal generator configured to generate a signal” is ambiguous.

[19:45] Another problem with the patent claim is: “to generate a non-paresthesia producing therapy signal” is a phrase that is an area of indefiniteness. Bird asks, “Can you patent something that doesn’t create an effect?”

[21:50] Two things important in the process of getting a patent claim issued are saying a product has a certain structure/composition, or function. Uses chainsaw as example

[22:40] Bird states how the court did not like how Nevro’s claim pertained to the claimed effect of the product, rather than an aspect of the product itself.

[23:45] There are two kinds of patent claims: article of composition or structure of device (device claim), and method claims. Bird mentions how court found that wording of Nevro’s patent claim was not indefinite for a method claim.

[25:40] Strategy to enforce structure-based claim is different (and easier) than enforcing a method claim

[28:00] Some patent clients conceal information about the process/products, some info does not go into patent. Bird says it is important to include all information possible in the patent.

[30:13] How patents are distinguished, and how patents are checked to make sure there is no “patent overlap”

[31:25] What does this Nevro vs Boston Scientific lawsuit mean for the neurotech industry? (specifically, for spinal cord stimulation)

[32:00] Bird talks about how more successful products are more susceptible to patent litigation

[33:00] This “war” is just beginning, and those in the spinal cord stimulation industry should be aware that litigation such as this could be a very costly part of entering the market

[35:30] Bird is working on getting his yacht, and Ladan can visit him 😊

[36:00] Bird says “follow the money and you can tell where the controversies are going to be”. He says the more revenue goes toward a product and patent, the more counsel they need.

[39:00] The investment occurring in this industry would not occur without patent protection. Investors do not want to put money in a company unless the products can be protected.

[40:35] Bird discusses non-practicing entities, which include research institutions, but also companies that simply acquire patents and instigate lawsuits

[41:45] Be kind to your patent lawyer.