Neurent Medical Inc. v. The Foundry, LLC

Case Overview: Neurent Medical Inc. v. The Foundry, LLC (IPR2024-00280) and Related District Court Litigation

Parties and technology. This matter is technically an inter partes review before the Patent Trial and Appeal Board — Neurent Medical Inc. and Neurent Medical Ltd. (Petitioners) challenging U.S. Patent No. 10,894,011 owned by The Foundry, LLC (Patent Owner) — but it sits at the center of a broader patent infringement war between two competing operating companies in the chronic-rhinitis medical-device space. Neurent is a venture-backed medical device company headquartered in Galway, Ireland (U.S. HQ in Braintree, MA) that makes the FDA-cleared NEUROMARK® System: a handheld, single-use, low-power bipolar radiofrequency (RF) device whose multi-leaflet "end effector" of bipolar electrode pairs delivers impedance-controlled micro-lesions to the posterior nasal nerves (PNN) to treat chronic rhinitis — an in-office procedure now reimbursed under CPT code 31242 (effective Jan. 1, 2024). The Foundry, LLC is a well-known medtech incubator (founded by serial inventors Mark E. Deem and Hanson Gifford, who are the named inventors of the '011 patent); it does not sell products but licenses its portfolio, and Aerin Medical Inc. is the exclusive licensee of the '011 patent "in the field of medical device treatments of the nasal cavity for any purpose," with the right to sue (Aerin, maker of the competing RhinAer® stylus, has been acquired by Stryker). So both sides are operating companies/device developers — not NPEs — fighting over competing PNN-ablation products in the same emerging market.

Patent and accused product. The single patent at issue in this IPR is U.S. Patent No. 10,894,011 B2, "Systems and Methods for Delivery of a Therapeutic Agent," filed Apr. 7, 2020, issued Jan. 19, 2021. In one line: the patent claims a device having an elongate shaft and a distal energy-transmission element configured to deliver energy (e.g., RF) to target tissue in the nasopharyngeal passage, i.e., apparatus for disrupting posterior nasal nerves to treat rhinitis. The accused product is Neurent's NEUROMARK system, which Foundry/Aerin contend practices the '011 patent by positioning the distal end of the device in the nasopharyngeal passage/choanae while delivering RF energy through multi-electrode leaflets. Neurent challenged claims 1, 2, 5, 8–10, 12, and 14 on grounds of anticipation and obviousness (e.g., over Deem, Saadat, and the combination of Makower, Fang, and Edwards), with the pivotal fight centering on whether the claims can claim priority to a July 21, 2006 provisional application (the '771 provisional) — Neurent arguing the chain broke and the claims lack written-description support, which would make earlier art (including Foundry's own Deem reference) available.

Procedural posture, venue, and significance. The IPR was filed Jan. 18, 2024; the Board (APJs Sheridan K. Snedden, Susan L. C. Mitchell, and Timothy G. Majors) instituted review on July 23, 2024, and issued its Final Written Decision on July 21, 2025 (Paper 41) — a decision now on appeal to the Federal Circuit (per docket status "Final Written Decision - Appealed"; I did not locate the Federal Circuit docket number in available sources, and the claim-by-claim outcome of the FWD is not confirmed in the snippets I could verify). The underlying infringement case is Aerin Medical Inc. and The Foundry, LLC v. Neurent Medical Inc. and Neurent Medical Ltd., No. 1:23-cv-00756-JLH (D. Del.), before Judge Jennifer L. Hall — a leading patent venue — where Foundry/Aerin assert eight patents (including the '011, as well as the '597, '194, '675, '318, '271, '077, and '286 patents), and where Neurent filed counterclaims. The district court stayed the case on Aug. 8, 2024 until final PTAB decisions in the parallel IPRs (a coordinated Neurent campaign spanning IPR2024-00275 through -00282 and -00669 against the Aerin/Foundry portfolio, with IPR2024-00281 terminated in favor of -00669), then partially lifted the stay in March 2025 to advance discovery on Neurent's own counterclaim patents. The case is notable as a head-to-head competitive dispute in the fast-growing posterior-nasal-nerve ablation market (now reimbursed by CMS), a test of Foundry's foundational 2006-vintage patent family through a written-description/priority-chain attack, and part of a two-front war in which Aerin has also petitioned IPRs against Neurent's patents (e.g., IPR2025-01126) — making the D. Del. litigation and the PTAB outcomes jointly determinative of the competitive landscape between NEUROMARK, RhinAer, and Stryker's ClariFix.

Key Legal Developments & Outcome — Neurent Medical Inc. v. The Foundry, LLC (IPR2024-00280) and Related Litigation

Important framing note

The case in your metadata (IPR2024-00280) is a PTAB inter partes review, not the district court infringement action itself. The underlying patent infringement suit is Aerin Medical Inc. and The Foundry, LLC v. Neurent Medical Inc. and Neurent Medical Ltd., C.A. No. 1:23-cv-00756 (D. Del.) (filed 2023-07-11, originally under Judge Gregory B. Williams; later captioned before Judge Jennifer L. Hall (JLH) and consolidated). U.S. Patent No. 10,894,011 ("the '011 patent") is one of eight patents asserted against Neurent's NEUROMARK® rhinitis-treatment system. The IPR is the vehicle that effectively decided the fate of the '011 patent claims in the litigation. Below is the full chronological picture of both tracks.

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1. Filing & Initial Pleadings (District Court)

• 2023-07-11 — Aerin Medical Inc. and The Foundry, LLC filed the infringement complaint against Neurent Medical Inc. and Neurent Medical Ltd. in the District of Delaware (1:23-cv-00756), alleging infringement of eight patents (later set out in the Amended Complaint, D.I. 17): U.S. Patent Nos. 9,072,597 ('597), 9,415,194 ('194), 10,610,675 ('675), 10,894,011 ('011), 11,033,318 ('318), 11,241,271 ('271), 11,679,077 ('077), and 11,766,286 ('286). Plaintiffs sought damages and a permanent injunction against the NEUROMARK® System. (Source: Amended Complaint, Ex. 1035 in IPR2024-00279; D. Del. docket.)
• 2023 — Neurent moved for partial dismissal (D.I. 19/20); that motion was denied (D.I. 74).
• 2024-07-08 — Neurent filed First Amended Counterclaims (D.I. 81), adding: (a) a patent infringement counterclaim against Aerin on Neurent's U.S. Patent No. 11,998,262 ('262), and (b) state-law counterclaims for tortious interference and unfair competition (originally pled at D.I. 40).
• 2024-08-12 — Aerin/Foundry moved to dismiss the amended counterclaims (D.I. 89; opening brief D.I. 94), arguing the '262 counterclaim fails on an on-sale bar (RhinAer® sold before the '262 priority date) and the tort/unfair-competition claims are conclusory, preempted by federal patent law, and barred by Noerr-Pennington. This motion was still pending when the case was stayed. (An earlier motion to dismiss the original counterclaims, D.I. 58/59, had been denied as moot, D.I. 82.)

2. The IPR Petitions & Institution (the "parallel PTAB" track)

• 2024-01-18 — Neurent filed eight IPR petitions challenging essentially all asserted claims of the eight Aerin/Foundry patents: IPR2024-00275, -00276, -00277, -00278 (Aerin patents) and IPR2024-00279, -00280 ('011 patent), -00282, and IPR2024-00669 (Foundry patents). IPR2024-00280 challenges claims 1–2, 5, 8–10, 12, and 14 of the '011 patent. (Petition Paper 3; Patent Owner's Request for Oral Argument, IPR2024-00280.)
• 2024-02-08 — The Foundry filed Mandatory Notices, disclosing that Aerin is the exclusive licensee of the '011 patent in the field of nasal-cavity medical-device treatments, and identifying the D. Del. case and related IPRs (00279, 00281) as related matters.
• 2024-07-22/23 — The PTAB instituted IPR on all eight patents; specifically, IPR2024-00280 was instituted on 2024-07-23. (GreyB/ipVerse case data; Joint Status Report, D. Del. D.I. 104.)

3. Pre-Trial Motions of Substance (District Court) & the Stay

• 2024-08-08 — The district court entered the parties' stipulation staying the entire action (D.I. 93) — including the infringement claims, Neurent's defenses, and the amended counterclaims — until the PTAB issues Final Written Decisions in the IPRs. This stay is the dominant procedural fact: it froze the infringement litigation while the IPRs ran.
• 2024-09-24 — Neurent filed a separate Delaware action against Aerin asserting U.S. Patent Nos. 12,096,973; 12,096,974; and 12,098,889 (C.A. No. 24-1070-JLH). Aerin's motion to dismiss those claims was pending.
• 2024-10-24 — Aerin statutorily disclaimed all asserted/challenged claims of the '597 and '194 patents, removing them from the case and mooting the corresponding IPRs.
• 2025-03-18 — The court entered the Stipulation and Order to Consolidate the 24-1070 action into 23-756 (D.I. 106) and an Interim Scheduling Order concerning the Neurent patents-in-suit (D.I. 107). (Joint Status Report, D.I. 104.)

4. Claim Construction (Markman)

• Not reached in the district court. The case was stayed (2024-08-08) before any Markman hearing, and no claim-construction order has been located in the public record. In the IPR itself, the Board applies the Phillips standard for claim construction (standard PTAB practice), but no standalone Markman decision was issued in IPR2024-00280.

5. Discovery Milestones (strategically significant)

Discovery occurred primarily in the IPR track (district court discovery was stayed):

• 2024-10-17 — Deposition of The Foundry's expert, Dr. Nicolas Bu-Saba (Boston, MA), taken by Neurent (Wilmer Cutler) with Foundry represented by Heath Briggs (Greenberg Traurig); transcript filed 2024-10-25 as PO Ex. 2002 (IPR2024-00279/00280). The deposition spanned the three "Foundry IPRs" (00279, 00280, 00669).
• 2024-10-25 — Patent Owner Responses filed in the Foundry IPRs.
• 2024-12 → 2025-01 — Expert discovery round: Neurent noticed/conducted depositions of Foundry experts including Dr. Marom Bikson and Dr. Levine (petitioner exhibits 1089–1098 include Levine and Bikson transcripts and Bu-Saba/Martin reply declarations); Foundry noticed a second deposition of Dr. Bu-Saba (notice filed 2025-01-27; transcript Ex. 2009).
• 2025-01-17 — Petitioners' Reply to Patent Owner Response (Paper 26).
• 2025-01-24/27 — Foundry's objections to evidence; joint stipulation extending Due Date 3 from 2025-02-18 to 2025-03-04.
• 2025-03-04 — Patent Owner's Sur-Reply (Paper 30).
• 2025-04-01 — Foundry filed a Motion to Exclude (Paper 35) — later dismissed by the Board in the FWD.

6. Hearing / "Trial" Events

• 2025-04-29 — In-person oral argument at USPTO headquarters (Alexandria, VA) for the consolidated "Foundry IPRs" (IPR2024-00279, -00280, -00669), 90 minutes per side; both parties filed demonstratives and the Foundry filed its Request for Oral Argument on 2025-03-11.
• 2025-06-17 — Hearing transcript filed (Paper 40).
• No jury trial occurred in the district court (the case remained stayed).

7. Final Written Decision — the operative "judgment" for the '011 patent

• 2025-07-21 — The PTAB (Judges Sheridan K. Snedden, Susan L. C. Mitchell, Timothy G. Majors) issued the Final Written Decision (Paper 41) in IPR2024-00280: all challenged claims (1–2, 5, 8–10, 12, 14) of U.S. Patent No. 10,894,011 are unpatentable as obvious over the asserted prior-art combinations (35 U.S.C. § 103); the Board dismissed Foundry's Motion to Exclude. (DocketAlarm entry: "Final Written Decision Determining All Challenged Claims Unpatentable 35 U.S.C. § 318(a) Dismissing Patent Owner's Motion to Exclude 37 C.F.R. § 42.64(c).") Bloomberg Law summarized on 2025-07-22 that the Board found the challenged claims obvious over combinations of prior art directed to catheter-based sinusitis/ENT treatment devices and RF ablation for rhinitis.
• The Board issued parallel FWDs on 2025-07-11 in the Aerin IPRs (e.g., IPR2024-00277 ('271), -00278 ('318), -00282 ('286)), likewise finding all challenged claims unpatentable — reported by Law360 (2025-07-15) as the PTAB "knock[ing] out claims in 3 nasal airway patents."

8. Appeals & Present Posture

• 2025-09-11 — Aerin (patent owner) filed Notices of Appeal to the Federal Circuit from the Aerin-patent FWDs (e.g., IPR2024-00278, -00282).
• 2025-09-15 — The Foundry filed its Notice of Appeal (Paper 42) from the FWD in IPR2024-00280 to the U.S. Court of Appeals for the Federal Circuit. Case status is now "Final Written Decision – Appealed." (I could not confirm the Federal Circuit docket number from available sources — treat that as unverified.)
• District court posture: As of the most recent available filings, the district court action (23-756, consolidated with 24-1070) remained stayed pending the IPR FWDs, with the parties managing an interim schedule only as to the Neurent patents-in-suit. No final judgment, settlement, or dismissal in the district court has been located — the effective substantive defeat of the '011 patent (and several co-asserted patents) at the PTAB is the defining outcome to date, subject to the pending Federal Circuit appeals.

9. Parallel PTAB Proceedings & Their Effect on the Litigation

• The eight co-pending IPRs (IPR2024-00275–00278, -00279, -00280, -00282, -00669) were filed the same day (2024-01-18, plus -00669 on 2024-04-03) and were explicitly designed to cover every claim asserted in the Delaware action.
• IPR2024-00281 (a second challenge to the '077 patent) was terminated after Neurent moved to withdraw it without prejudice, in favor of IPR2024-00669.
• Effect on litigation: The district court's entire-case stay (2024-08-08) was conditioned on the IPR FWDs; the '597/'194 claims dropped out via statutory disclaimer (2024-10-24); and the 2025-07 FWDs invalidating the '011 claims (and the '271, '318, '286, and other Foundry-patent claims) gutted the patent-infringement case as originally pleaded. What remains active is the consolidated Neurent-patents counter-suit (the '262, '973, '974, '889 claims), the pending counterclaim-dismissal motions, and the Federal Circuit appeals of the PTAB decisions.

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Bottom line / outcome

• '011 patent: All challenged claims held unpatentable (obviousness) — FWD 2025-07-21; appealed by The Foundry on 2025-09-15 (pending at the Federal Circuit).
• District court case (1:23-cv-00756): stayed since 2024-08-08 pending the IPRs; no trial or judgment yet; the infringement claims on the '011 patent are effectively eviscerated by the FWD unless the Federal Circuit reverses.
• Parallel IPRs: Neurent won across the board at the Board level (all challenged claims unpatentable in the decided IPRs), with Aerin/Foundry appealing the adverse FWDs.

Caveats on sourcing: Docket-entry numbers for the D. Del. case (D.I. 17, 40, 58–60, 74, 81–82, 89, 93–94, 104, 106–107) come from party filings and PTAB exhibits located via public sources (PTACTS, DocketAlarm, Finnegan case page, Justia), not a full PACER pull. The Federal Circuit appeal docket number for IPR2024-00280, the outcome of the pending counterclaim-dismissal motions, and any post-FWD district-court action (e.g., stay-lift, summary judgment, settlement) could not be verified from the available search results as of 2026-08-29 and should be confirmed on PACER/CM/ECF if needed for filing.

Counsel of Record — Plaintiffs Aerin Medical Inc. and The Foundry, LLC

Scope note. The case metadata in this matter is the PTAB inter partes review (IPR2024-00280, where Neurent is Petitioner and The Foundry, LLC is Patent Owner). The "patent infringement case" in which these parties are plaintiffs is the related District of Delaware action, Aerin Medical Inc. and The Foundry, LLC v. Neurent Medical Inc. and Neurent Medical Ltd., No. 1:23-cv-00756-JLH (D. Del.), where Aerin and Foundry assert eight patents including the '011 patent at issue in this IPR. The same litigation team appears for the patent owners in the IPR campaign, per Finnegan's own case page (Finnegan represents Aerin and Foundry in 1:23-cv-00756 and in IPR2024-00275, -00276, -00277, -00278, -00279, -00280, -00282, and -00669). Counsel below is therefore counsel for the plaintiffs/counterclaim-defendants in the infringement suit and the patent-owner side of the IPRs.

Lead / trial counsel — Finnegan, Henderson, Farabow, Garrett & Dunner, LLP (Washington, DC office; pro hac vice in D. Del.)

Delaware local counsel — McCarter & English, LLP (Renaissance Centre, 405 N. King St., 8th Fl., Wilmington, DE)

In-house / other

• In-house counsel: No Aerin or Foundry in-house counsel appears of record in the publicly available docket snippets; the case has been run by outside counsel (Finnegan + McCarter & English).
• Additional PHV appearances: The D. Del. docket reflects a "Pro Hac Vice Fee – 02 Attorneys" credit-card payment entry around July 11, 2025 (and earlier PHV activity), indicating at least two additional out-of-state attorneys were added later in the case — their names are not visible in the sources I could verify and would need a PACER look at the corresponding PHV motion/order.

Sources

• CourtListener parties/docket page for 1:23-cv-00756 (Silver listed as LEAD ATTORNEY; Joyce attorney to be noticed) — courtlistener.com/docket/67599357.
• Justia docket for 1:23-cv-00756 (D.I. 10 PHV motion for Jakes, Daley, Sahlsten, SO ORDERED Aug. 4, 2023; PHV notice entry Aug. 7, 2023).
• Plaintiffs' Aug. 5, 2024 motion-to-dismiss signature block (D.I. 94, reproduced as Ex. 1023 in IPR2025-01125 PTAB filings): Finnegan (Jakes, Daley, Sahlsten, Howes) + McCarter & English (Silver, Joyce).
• Finnegan firm case page: "Aerin Medical Inc. et al. v. Neurent Medical Inc. et al., 1:23-cv-00756, D. Del. … IPR2024-00275, -00276, -00277, -00278, -00279, -00280, -00282, -00669, PTAB."
• IPR2024-00277 Patent Owner Updated Mandatory Notices (Paper 15, Aug. 28, 2024): Daley/Sahlsten/Howes designations and registration numbers.
• D.I. 6 summons signed by Randall Lohan (McCarter & English), July 11, 2023 (CourtListener).

Caveats. I could not confirm (a) the names of the two attorneys added via the July 2025 PHV fee entry, (b) whether Randall Lohan remained active on the docket after the initial summons, or (c) any in-house counsel — those items would require a PACER review of the full attorney appearance list. The Finnegan/McCarter lineup above is corroborated across at least three independent sources (docket entries, signature blocks, and firm materials).

Counsel of Record — Clarifying the "Defendant" Framing First

A threshold point matters here: IPR2024-00280 is not itself an infringement case — it is a PTAB proceeding in which Neurent Medical Inc./Ltd. is the Petitioner and The Foundry, LLC is the Patent Owner/respondent (the metadata's "Defendant(s)" field maps to The Foundry). The actual patent infringement case is the parallel D. Del. action, Aerin Medical Inc. and The Foundry, LLC v. Neurent Medical Inc. and Neurent Medical Ltd., No. 1:23-cv-00756-JLH (Judge Jennifer L. Hall), where Neurent is the defendant. I cover both below, since the question could be read either way.

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1. In the IPR (IPR2024-00280) — Counsel for The Foundry, LLC (Patent Owner / "defendant" per case metadata)

The Foundry's executed Power of Attorney in IPR2024-00279/-00280/-00669 (dated Aug. 26, 2024, served Aug. 28, 2024; available on PTACTS) appoints Greenberg Traurig, LLP as its attorneys of record:

• Confirmation of record status: A substantive Patent Owner filing dated March 11, 2025 in IPR2024-00280 is signed by Heath J. Briggs as "Counsel for Patent Owner," confirming GT/Briggs is the active counsel of record for The Foundry in this IPR.
• Experience note: Briggs is a Denver-based IP/PTAB litigator leading Foundry's patent-owner defense across the coordinated Neurent IPR campaign; his broader bio (past cases) wasn't independently verified in the sources I could access. Backup counsel Ward, Gilford, and Araj are all registered practitioners with GT's national IP litigation bench.

Flag/ambiguity — Finnegan also appears on the Patent Owner side. The docket aggregator IPVerse lists "Respondent Counsel: Daley, Kathleen et al." for this IPR, and Finnegan's own firm page states Finnegan is "representing patent owners Aerin Medical Inc. and The Foundry, LLC in a series of inter partes review (IPR) challenges to the asserted patents," specifically listing IPR2024-00280 (alongside -00275 through -00282 and -00669). Notably, the POA served Aug. 28, 2024 was certified by Lisa C. Hines, a Finnegan case manager, and in the related IPR2024-00281 the Foundry's POA designates Kathleen A. Daley (Finnegan, Washington, DC) as lead counsel (backup Jason Stach). So Finnegan (Daley, J. Michael Jakes, Sonja W. Sahlsten, Christopher C. Howes) appears to be co-ordinating/co-counsel for the Foundry/Aerin side across the portfolio, but the formal POA of record for IPR2024-00280 specifically designates Greenberg Traurig as lead. I could not resolve from public snippets whether Finnegan attorneys are separately listed on the IPR2024-00280 docket as backup counsel; PACER/PTAB docket access would confirm.

2. In the Underlying District Court Infringement Case (D. Del. 1:23-cv-00756-JLH) — Counsel for Defendants Neurent Medical Inc. & Neurent Medical Ltd.

Lead / national counsel — Wilmer Cutler Pickering Hale and Dorr LLP (WilmerHale):

• David Cavanaugh (david.cavanaugh@wilmerhale.com) — lead; a veteran WilmerHale IP litigator and the lead petitioner's counsel in the IPR campaign as well.
• Gregory Lantier (gregory.lantier@wilmerhale.com) — co-lead/appellate-grade IP litigator; also lead on the IPR side.
• Alexis R. Cohen (alexis.cohen@wilmerhale.com)
• Joshua L. Stern (joshua.stern@wilmerhale.com)
• Alexander Nemtzow (alex.nemtzow@wilmerhale.com)
• Gilbert Smolenski (gilbert.smolenski@wilmerhale.com)

Source grounding: The Justia docket for 1:23-cv-00756 shows a pro hac vice entry (Aug. 23, 2023, signed by Judge Gregory B. Williams) for "Lantier, David L. Cavanaugh, Alexis R. Cohen and Joshua L. Stern … filed by Neurent Medical Inc., Neurent Medical Ltd." The same six-attorney WilmerHale team appears on every PTAB service list in IPR2024-00280 (served via WHNeurentIPRService@wilmerhale.com). Their role in the D. Del. case is defense of Neurent against Aerin/Foundry's eight-patent infringement suit (the '011 patent at issue in this IPR included).

Delaware local counsel for Neurent: not confirmed. From the snippets available, only the plaintiffs' Delaware counsel is visible — McCarter & English, LLP (Daniel M. Silver, Alexandra M. Joyce, Wilmington, DE), who signed the Aug. 2024 motion as "Attorneys for Plaintiffs Aerin Medical Inc. and The Foundry, LLC," with Finnegan (J. Michael Jakes, Kathleen A. Daley, Sonja W. Sahlsten, Christopher C. Howes — Washington, DC) as of counsel. Neurent's Delaware local counsel (typically required in D. Del.) did not appear in the search results I could retrieve; the CourtListener parties page for the case lists representatives but I could only see the McCarter & English entries in the snippet. This is a genuine gap — check D.I. 1–20 on PACER/CM/ECF for Neurent's appearance entries.

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3. Federal Circuit Appeal — Not Yet Identified

The FWD (Paper 41, July 21, 2025) is marked "Appealed," and Bloomberg Law confirms the Board found the challenged claims of the '011 patent unpatentable as obvious. I did not locate the Federal Circuit docket number, the appellant's identity, or appellate counsel in any source I could access. The appeal (and its counsel of record) remains to be confirmed on the Federal Circuit's docket.

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Bottom Line

• If "defendant" = The Foundry (per this case's metadata, as Patent Owner/respondent in IPR2024-00280): Counsel of record is Greenberg Traurig — lead Heath J. Briggs (Denver), with backups Trenton Ward (Atlanta), Benjamin P. Gilford (Minneapolis), Elana Araj (New York), and Stephen M. Ullmer (Denver). Finnegan (Kathleen Daley et al.) is also publicly associated with the Patent Owner side of this IPR campaign and appears in docket aggregators as respondent counsel, though the formal POA for this case names GT as lead.
• If "defendant" = Neurent (defendant in the underlying D. Del. infringement case): National counsel is WilmerHale — David Cavanaugh, Gregory Lantier, Alexis Cohen, Joshua Stern, Alexander Nemtzow, Gilbert Smolenski — with Delaware local counsel not yet confirmed from available sources (do not assume; check the D. Del. docket, entries D.I. 1–20).

No attorneys have been invented here; anything unconfirmed is flagged above.