Case: 19-1584   Document: 71     Page: 1   Filed: 05/18/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

    BOSTON SCIENTIFIC NEUROMODULATION
               CORPORATION,
                  Appellant

                            v.

                    NEVRO CORP.,
                       Appellee

     ANDREI IANCU, UNDER SECRETARY OF
   COMMERCE FOR INTELLECTUAL PROPERTY
    AND DIRECTOR OF THE UNITED STATES
      PATENT AND TRADEMARK OFFICE,
                   Intervenor
             ______________________

                       2019-1584
                 ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. IPR2017-
 01899.
                  ______________________

                 Decided: May 18, 2020
                 ______________________

    MATTHEW WOLF, Arnold & Porter Kaye Scholer LLP,
 Washington, DC, for appellant. Also represented by
 ANDREW TUTT; DAVID A. CAINE, Palo Alto, CA.
Case: 19-1584    Document: 71     Page: 2    Filed: 05/18/2020




2                           BOSTON SCIENTIFIC   v. NEVRO CORP.




    JON WRIGHT, Sterne Kessler Goldstein & Fox, PLLC,
 Washington, DC, for appellee. Also represented by CHING-
 LEE FUKUDA, SHARON LEE, Sidley Austin LLP, New York,
 NY; RYAN C. MORRIS, Washington, DC.

     MAI-TRANG DUC DANG, Office of the Solicitor, United
 States Patent and Trademark Office, Alexandria, VA, for
 intervenor. Also represented by THOMAS W. KRAUSE,
 FARHEENA YASMEEN RASHEED.
                 ______________________

    Before LOURIE, MOORE, and O’MALLEY, Circuit Judges.
 MOORE, Circuit Judge.
     Boston Scientific Neuromodulation Corporation ap-
 peals the final written decision of the Patent Trial and Ap-
 peal Board holding claims 1–20 of U.S. Patent No.
 7,587,241 unpatentable as obvious. For the reasons dis-
 cussed below, we affirm.
                        BACKGROUND
      Boston Scientific owns the ’241 patent, which discloses
 methods for controlling an implantable medical device by
 enabling or disabling certain features based on the voltage
 of its internal power source. ’241 Patent at 13:11–54. In
 one embodiment, if the voltage drops below a particular
 threshold, the receiver continues to listen for telemetry
 from the external charging component, but stops listening
 for telemetry from other external components. Id. Telem-
 etry from the external components may be transmitted via
 a bidirectional telemetry link “known as the FSK (Fre-
 quency Shift Key) telemetry link, or RF telemetry link.” Id.
 at 8:56–58. The external charging component may also in-
 clude a forward telemetry link that “may use OOK-PWM
 (On/Off Keying – Pulse Width Modulation), and is typically
 an inductive telemetry link.” Id. at 8:58–61. Claim 1 re-
 cites:
Case: 19-1584     Document: 71        Page: 3   Filed: 05/18/2020




 BOSTON SCIENTIFIC   v. NEVRO CORP.                             3



     1. A method for controlling an implantable medical
     device, comprising:
     monitoring a voltage of a power source within the
     implantable medical device;
     if the voltage is above a first threshold, enabling
     the following functions:
         listening for a first type of telemetry from a first
         external component;
         listening for a second type of telemetry from an
         external charging component, wherein the ex-
         ternal charging component is used to wirelessly
         charge the power source; and
         providing stimulation to device electrodes us-
         ing the power source; and
     if the voltage falls below the first threshold, discon-
     tinuing listening for the first type of telemetry from
     the first external component and discontinuing
     providing stimulation to device electrodes using
     the power source, while continuing listening for the
     second type of telemetry.
 ’241 patent at 20:28–46 (emphases added).
      Nevro Corporation petitioned for inter partes review of
 claims 1–20 of the ’241 patent. The Board instituted review
 of all challenged claims and held that: (1) claims 1, 3–8, 10–
 14, and 16–20 are unpatentable under 35 U.S.C. § 103 in
 view of U.S. Patent. No. 6,453,198 (Torgerson ’198), U.S.
 Patent No. 7,167,756 (Torgerson ’756), and U.S. Patent No.
 6,456,883 (Torgerson ’883); and (2) claims 2, 9, and 15 are
 unpatentable under 35 U.S.C. § 103 in view of Torgerson
 ’198, Torgerson ’756, Torgerson ’883, and U.S Patent No.
 6,647,298 (Abrahamson). Boston Scientific timely ap-
 pealed.       We have jurisdiction under 28 U.S.C.
 § 1295(a)(4)(A).
Case: 19-1584      Document: 71      Page: 4     Filed: 05/18/2020




4                             BOSTON SCIENTIFIC      v. NEVRO CORP.



                           DISCUSSION
     We review the Board’s legal determinations de novo
 and its factual findings for substantial evidence. In re Van
 Os, 844 F.3d 1359, 1360 (Fed. Cir. 2017). “Obviousness is
 a question of law based on underlying facts” such as the
 scope and content of the prior art. Arctic Cat Inc. v. Bom-
 bardier Recreational Prods. Inc., 876 F.3d 1350, 1358 (Fed.
 Cir. 2017).
       I.       Claims 1, 3–8, 10–14, and 16–20
                1. “listening for . . . telemetry”
     The Board construed “telemetry” as the “transmission
 of data or information . . . in the form of a transmission of
 energy (power).” J.A. 18. It clarified that “telemetry does
 not include an unmodulated transmission of energy
 (power).” Id. Under this construction, the Board found
 that Torgerson ’883’s disclosure of a charging circuit receiv-
 ing telemetry from a telemetry signal teaches the claimed
 step of listening for the second type of telemetry. J.A. 42–
 43.
     Boston Scientific argues that the Board erred in con-
 struing “telemetry” and what it means to “listen[] for . . .
 telemetry,” and therefore that substantial evidence does
 not support the Board’s finding. While Boston Scientific
 agrees with the Board that “telemetry” means “data or in-
 formation,” it contends that “listening for . . . telemetry”
 means that “a specialized receiver is ready to receive data
 or information transmitted to it from a specialized trans-
 mitter.” Appellant’s Br. 36. Boston Scientific did not pro-
 pose a construction for, and the Board did not separately
 construe, “listening for . . . telemetry.”
     Nevro contends that Boston Scientific waived any
 claim construction argument as to “listening for . . . telem-
 etry” by failing to raise it before the Board. We agree. The
 Board construed “telemetry” in its Institution Decision,
 providing Boston Scientific ample opportunity to offer a
Case: 19-1584      Document: 71       Page: 5   Filed: 05/18/2020




 BOSTON SCIENTIFIC   v. NEVRO CORP.                           5



 construction for the “listening for” term in its patent owner
 response. The Board’s Institution Decision also prelimi-
 narily determined that Torgerson ’883 discloses a “second
 telemetry from an external charging component . . .” under
 its construction. The Board’s finding in its Final Written
 Decision that Torgerson ’883’s charging circuit teaches “lis-
 tening for a second type of telemetry” by “draw[ing] energy
 (power)       from     the    modulated      electromagnetic
 waves . . . transmitted to it” was therefore not an unex-
 pected construction of “listening for telemetry” as Boston
 Scientific contends. Appellant’s Reply Br. 9 (citing J.A. 42–
 43, 48–49). Accordingly, we hold that Boston Scientific
 waived any claim construction argument as to “listening
 for . . . telemetry” and we do not address the parties’ argu-
 ments as to the construction of this term or whether sub-
 stantial evidence supports the Board’s finding under
 Boston Scientific’s proposed construction.
      Substantial evidence supports the Board’s finding that
 Torgerson ’883 discloses listening for a second type of te-
 lemetry under the Board’s construction. J.A. 41. Figure 2
 of Torgerson ’883 “illustrates that a telemetry signal 10 in-
 teracts directly with a charging circuit 20 and a controller
 90.” J.A. 1144 at 5:18–20. Torgerson ’883 further discloses
 that “[t]he telemetry signal 10 also interacts with the con-
 troller 90 to deliver and receive patient and device data.”
 Id. at 5:23–24. Thus, the signal in Torgerson ’883 meets
 the Board’s construction that the telemetry signal include
 data (e.g., modulated electromagnetic waves). J.A. 42–43.
 As the Board found, “[t]he fact that charging circuit 20
 draws energy (power) from the modulated electromagnetic
 waves that make for the ‘telemetry’ signals does not change
 the fact that it uses the ‘telemetry’ signals transmitted to
 it.” J.A. 43.
                2. “type of telemetry”
     The Board found that Torgerson ’756 discloses a telem-
 etry unit that listens for a first type of telemetry from an
Case: 19-1584    Document: 71      Page: 6    Filed: 05/18/2020




6                           BOSTON SCIENTIFIC   v. NEVRO CORP.



 external physician programmer and patient programmer.
 The Board further found that “Torgerson ’756 covers the
 use of a second type of telemetry for battery charging oper-
 ations.” J.A. 39 (emphasis in original). Boston Scientific
 argues that the latter finding is not supported by substan-
 tial evidence. It contends that Torgerson ’756 discloses
 only one type of telemetry—inductive telemetry—and
 therefore Torgerson ’756 does not disclose a second type of
 telemetry.
     Torgerson ’756 discloses a telemetry unit that listens
 for a first type of telemetry. Nevro argues that Torgerson
 ’756’s recharge module, which uses “other communication
 techniques” to communicate with an external charger, uses
 a second type of telemetry. The recharge module comprises
 a recharge regulation control unit that “communicates with
 [an] external component via telemetry unit 305.” J.A. 1129
 at 7:41–45; J.A. 1130 at 9:46–47. Torgerson ’756 further
 discloses the implementation of “other communication
 techniques” where “recharge regulation control unit 525
 communicates with the external component by modulating
 the load on the recharge coil[, which] can then be sensed in
 the circuitry driving the source coil of the external compo-
 nent.” J.A. 1130 at 9:48–53. There is nothing in the ’241
 patent specification that precludes this communication
 technique from constituting a second “type of telemetry”
 merely because it is not a different type of energy transfer
 modality. Indeed, Boston Scientific’s expert, Dr. Ronald
 Berger testified that “it is the modulation of the electro-
 magnetic wave that makes it a telemetry link.” J.A. 1416
 ¶ 33. Dr. Berger also testified that “it is possible that the
 Torgerson ’756 may use two types of telemetry . . . for the
 internal device to communicate outward to the external de-
 vice.” J.A. 1317 at 140:17–20. We therefore hold that sub-
 stantial evidence supports the Board’s finding that the
 recharge regulation control unit employs a second type of
 telemetry to communicate the change in load to the exter-
 nal component. J.A. 38.
Case: 19-1584        Document: 71      Page: 7   Filed: 05/18/2020




 BOSTON SCIENTIFIC    v. NEVRO CORP.                           7



                3.   Combination of Torgerson References
      Boston Scientific argues that substantial evidence does
 not support the Board’s finding that a skilled artisan would
 have been motivated to modify Torgerson ’198 and Torg-
 erson ’756 in view of Torgerson ’883 to create a device that
 listens for two types of telemetry. We do not agree. As
 discussed above, Torgerson ’756 discloses the implementa-
 tion of “other communication techniques” where “recharge
 regulation control unit 525 communicates with the exter-
 nal component.” J.A. 1130 at 9:48–53. It further discloses
 that when “the power source 315 is almost depleted of en-
 ergy, the power source 315 may not have sufficient energy
 to provide the feedback control” and, therefore, “the exter-
 nal component may deliver an initial large burst of energy
 to ‘wake up’ the power source 315 and the recharge module
 310.” J.A. 1129 at 8:62–67. Dr. Berger stated that the
 wake up burst in Torgerson ’756 “may be the same wake
 up burst” as the one in Torgerson ’883. J.A. 1321 at 144:8–
 16. We therefore agree with the Board that “[g]iven that
 Torgerson ’883 employs a telemetry technique to deliver a
 ‘wake up’ burst, which Torgerson ’756 also discloses and is
 perhaps the same ‘wake up’ burst, . . . adequate motivation
 has been provided for a POSA to look to Torgerson ’883 for
 another technique (involving telemetry) to deliver a ‘wake
 up’ burst with respect to the charging component of Torg-
 erson ’756.” J.A. 50.
     Accordingly, we hold that the Board did not err in hold-
 ing that claims 1, 3–8, 10–14, and 16–20 would have been
 obvious over the combined teachings of Torgerson ’198,
 Torgerson ’756, and Torgerson ’883.
                      II. Claims 2, 9, and 15
     Claims 2, 9, and 15 limit independent claims 1, 8, and
 14, respectively by reciting: “wherein the first telemetry
 type comprises Frequency Shift Keying (FSK), and wherein
 the second telemetry type comprises On/Off Keying
 (OOK).” Substantial evidence supports the Board’s finding
Case: 19-1584    Document: 71      Page: 8    Filed: 05/18/2020




8                           BOSTON SCIENTIFIC   v. NEVRO CORP.



 that it would have been obvious to use FSK for the first
 type of telemetry and OOK for the second type of telemetry.
 J.A. 55.
     Torgerson ’198 and Torgerson ’756 disclose that telem-
 etry modules, such as telemetry module 305, are “generally
 known in the art.” J.A. 1114 at 6:12–20, 6:28–36; J.A. 1128
 at 6:50–59. Abrahamson discloses the use of FSK and OOK
 telemetry units. J.A. 1156 at 1:14–21 (“In RF coupled sys-
 tems, . . . [t]he carrier signal is modulated with the data
 that are to be transmitted using an appropriate modulation
 scheme, such as . . . frequency shift keying (FSK) . . . .”);
 J.A. 1158 at 5:11–15 (“The exact duration of the time inter-
 val is dependent of the used signal modulation method . . .
 [such as] On Off Keying (OOK) . . . .”). Nevro’s expert, Dr.
 Mark Kroll, declared that “a POSA would have chosen the
 FSK modulation scheme for the communication between
 the telemetry module 305 and an external device for pro-
 gramming the INS 14 because FSK provides a higher band-
 width and thus a higher capacity to transmit useful
 information.” J.A. 1021 ¶ 181. He further testified that “a
 POSA would have chosen the OOK modulation scheme for
 communication between the recharge module 310 and an
 external device used for charging the INS 14 because that
 communication is typically simpler and can be fully
 achieved with the simpler OOK modulation scheme.” Id.
     Accordingly, we conclude that the Board did not err in
 holding that claims 2, 9, and 15 would have been obvious
 in view of the combined teachings of Torgerson ’198, Torg-
 erson ’756, Torgerson ’883, and Abrahamson.
                         CONCLUSION
     We have considered the parties’ remaining arguments
 and do not find them persuasive. Because the Board’s find-
 ings are supported by substantial evidence, we affirm its
 holding that claims 1–20 of the ’241 patent are unpatenta-
 ble as obvious.
Case: 19-1584   Document: 71          Page: 9   Filed: 05/18/2020




 BOSTON SCIENTIFIC   v. NEVRO CORP.                           9



                         AFFIRMED
