Wave Neuroscience v. PeakLogic: TMS Brain Stimulation Patents Dismissed With Prejudice
Wave Neuroscience, Inc. filed suit against PeakLogic, Inc. and Dr. Kevin T. Murphy in the Southern District of California, asserting four patents covering EEG-guided, personalized transcranial magnetic stimulation (PrTMS). After 1,242 days of litigation — including a full claim construction hearing — the parties jointly moved to dismiss all claims with prejudice, each side bearing its own costs.
EEG-guided TMS patent war ends in bilateral shutdown after Markman ruling
Wave Neuroscience, Inc. filed this infringement action on July 23, 2021 in the Southern District of California against PeakLogic, Inc. and its co-founder Dr. Kevin T. Murphy, M.D. The suit asserted four U.S. patents — US8480554B2, US5921366A, US9446259B2, and US9272159B2 — covering methods and apparatus for personalised transcranial magnetic stimulation (TMS) therapy calibrated using electroencephalogram (EEG) data, marketed under Wave’s PrTMS® brand.
The case reached a contested claim construction hearing on November 10, 2022, at which the court construed key terms including ‘pre-selected intrinsic frequency,’ ‘Q-factor,’ and ‘EEG phase’ — central to whether PeakLogic’s MindSet/PrTMS® and PeakInput™ products read on the asserted claims. After more than two further years of litigation, the parties filed a joint motion to dismiss all claims with prejudice on or around December 16, 2024, which the court granted. All claims and counterclaims are extinguished; neither side can relitigate these claims.
A dismissal with prejudice following a full Markman hearing — after 1,242 days — strongly suggests the post-claim-construction landscape shifted settlement calculus for both parties. The specific terms of any commercial resolution are not disclosed in the public record. What remains unknown is whether a licence, technology assignment, or business arrangement accompanied the joint dismissal, which is consistent with a negotiated resolution rather than a unilateral capitulation.
Filing to Dismissed with Prejudice in 1242 days
1,242 days — over 3.4 years litigated before joint dismissal with prejudice
Dismissed with prejudice: what the joint motion means for both parties
With prejudice means permanent — no second bite at the apple
A dismissal with prejudice operates as a final adjudication on the merits. Wave Neuroscience cannot refile these infringement claims against PeakLogic or Dr. Murphy on the same patents. This is the most conclusive form of voluntary dismissal under Federal Rule of Civil Procedure 41(a). The joint motion signals mutual agreement — neither party forced this outcome unilaterally.
Rule 41(a)(1)(A)(ii) — joint stipulationWave Neuroscience forecloses future enforcement on these claims
By agreeing to dismiss with prejudice, Wave Neuroscience surrenders its right to pursue infringement of these four patents against PeakLogic and Murphy in any future action. This is consistent with a negotiated resolution — possibly including a licence or cross-arrangement — but the public record does not confirm any such terms. Wave retains the patents and may assert them against unrelated third parties.
Patents retained; enforcement extinguished against these defendantsPeakLogic secures permanent closure — litigation risk eliminated
PeakLogic and Dr. Murphy obtain permanent protection from these specific patent claims. With no costs awarded against them and all claims dismissed with prejudice, the defendants exit the litigation without an adverse finding. The claim construction record — particularly the court’s constructions of ‘pre-selected intrinsic frequency’ and Q-factor terms — may have informed the parties’ relative leverage heading into settlement discussions.
No liability finding; clean exit for PeakLogicTMS sector: claim construction record creates public prior art for future disputes
The November 2022 Markman order construing EEG-guided TMS claim terms is now public record and may inform future claim construction in related patent disputes. Competitors in the personalised TMS and neurostimulation space — including rTMS device makers and digital therapeutics firms — should note the court’s constructions of ‘pre-selected intrinsic frequency,’ ‘Q-factor,’ and ‘EEG phase’ as interpretive benchmarks for Wave’s patent portfolio.
Markman constructions remain as public recordFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | Wave Neuroscience, Inc. | Company | Neurotechnology company — holder of US8480554B2 and three EEG-guided TMS patentsSearch in Eureka ↗ |
| Defendant | PeakLogic, Inc. | Company | PeakLogic, Inc. and Dr. Kevin T. Murphy, M.D. — developers of PrTMS® and PeakInput™ TMS therapy platformSearch in Eureka ↗ |
| Co-Defendant | Kevin T. Murphy, M.D. | Individual | Search in Eureka ↗ |
| Plaintiff counsel | Benjamin Charles Deming | Attorney | Counsel for Wave Neuroscience, Inc.Search in Eureka ↗ |
| Plaintiff counsel | Bobbie Hooper | Attorney | Counsel for Wave Neuroscience, Inc.Search in Eureka ↗ |
| Plaintiff counsel | Catherine Maness | Attorney | Counsel for Wave Neuroscience, Inc.Search in Eureka ↗ |
| Plaintiff counsel | Colin C. Jennings | Attorney | Counsel for Wave Neuroscience, Inc.Search in Eureka ↗ |
| Plaintiff counsel | Deborah Susan Mallgrave | Attorney | Counsel for Wave Neuroscience, Inc.Search in Eureka ↗ |
| Plaintiff counsel | Joanne N. Davies | Attorney | Counsel for Wave Neuroscience, Inc.Search in Eureka ↗ |
| Plaintiff counsel | Jonathan Peter Hersey | Attorney | Counsel for Wave Neuroscience, Inc.Search in Eureka ↗ |
| Plaintiff counsel | Joseph R.R. Tache | Attorney | Counsel for Wave Neuroscience, Inc.Search in Eureka ↗ |
| Plaintiff counsel | Kari Lynn Barnes | Attorney | Counsel for Wave Neuroscience, Inc.Search in Eureka ↗ |
| Plaintiff counsel | Keian Vahedy | Attorney | Counsel for Wave Neuroscience, Inc.Search in Eureka ↗ |
| Plaintiff counsel | Pokuaa M. Enin | Attorney | Counsel for Wave Neuroscience, Inc.Search in Eureka ↗ |
| Plaintiff counsel | Roger Leonard Scott | Attorney | Counsel for Wave Neuroscience, Inc.Search in Eureka ↗ |
| Plaintiff law firm | Buchalter, A Professional Corporation | Law Firm | Representing Wave Neuroscience, Inc.Search in Eureka ↗ |
| Plaintiff law firm | K&L Gates LLP | Law Firm | Representing Wave Neuroscience, Inc.Search in Eureka ↗ |
| Plaintiff law firm | Kari L Barnes | Law Firm | Representing Wave Neuroscience, Inc.Search in Eureka ↗ |
| Plaintiff law firm | Shook, Hardy & Bacon LLP | Law Firm | Representing Wave Neuroscience, Inc.Search in Eureka ↗ |
| Defendant counsel | Allen M. Sokal | Attorney | Counsel for PeakLogic, Inc.Search in Eureka ↗ |
| Defendant counsel | Andrew Koning | Attorney | Counsel for PeakLogic, Inc.Search in Eureka ↗ |
| Defendant counsel | Charles Alfred Blazer , II | Attorney | Counsel for PeakLogic, Inc.Search in Eureka ↗ |
| Defendant counsel | Erik James Dykema | Attorney | Counsel for PeakLogic, Inc.Search in Eureka ↗ |
| Defendant counsel | Keith M. Cochran | Attorney | Counsel for PeakLogic, Inc.Search in Eureka ↗ |
| Defendant counsel | Kenneth M. Fitzgerald | Attorney | Counsel for PeakLogic, Inc.Search in Eureka ↗ |
| Defendant counsel | Nicholaus Harrison Woltering | Attorney | Counsel for PeakLogic, Inc.Search in Eureka ↗ |
| Defendant counsel | Philip C. Tencer | Attorney | Counsel for PeakLogic, Inc.Search in Eureka ↗ |
| Defendant counsel | Robert G. Knaier | Attorney | Counsel for PeakLogic, Inc.Search in Eureka ↗ |
| Defendant counsel | Shaun Paisley | Attorney | Counsel for PeakLogic, Inc.Search in Eureka ↗ |
| Defendant law firm | Blazer Legal | Law Firm | Representing PeakLogic, Inc.Search in Eureka ↗ |
| Defendant law firm | Ditthavong, Steiner & Mlotkowski | Law Firm | Representing PeakLogic, Inc.Search in Eureka ↗ |
| Defendant law firm | Fitzgerald Knaier LLP | Law Firm | Representing PeakLogic, Inc.Search in Eureka ↗ |
| Defendant law firm | Koning Zollar LLP | Law Firm | Representing PeakLogic, Inc.Search in Eureka ↗ |
| Defendant law firm | TencerSherman LLP | Law Firm | Representing PeakLogic, Inc.Search in Eureka ↗ |
| Presiding judge | Judge N/A | Judge | California Southern District CourtSearch in Eureka ↗ |
Official order — verbatim text
The court’s order grants the parties’ joint motion and dismisses all claims with prejudice, with each side bearing its own costs. The phrasing ‘all claims in this lawsuit’ is comprehensive — extinguishing both the patent infringement claims and any counterclaims. The cost-neutrality provision (‘each side to bear its own costs and fees’) suggests neither party secured a negotiating position sufficient to extract a fee award, which is consistent with a mutually agreed commercial resolution rather than a concession by either side.
US8480554B2 — EEG-guided personalised transcranial magnetic stimulation
US8480554B2, filed under application US12/237328, protects a system for delivering personalised repetitive transcranial magnetic stimulation (rTMS) therapy by measuring the subject’s intrinsic EEG brain frequency and adjusting magnetic field output to move that frequency toward a pre-selected target. The co-asserted patents — US5921366A, US9446259B2, and US9272159B2 — collectively cover related apparatus, EEG-phase targeting, and Q-factor-based optimisation of TMS treatment. This family sits at the intersection of neuroscience, medical device engineering, and digital therapeutics.
This patent family underpins Wave Neuroscience’s PrTMS® commercial platform and represents a defensible moat in the personalised neurostimulation market. With EEG-guided TMS emerging as a therapeutic modality for depression, PTSD, and cognitive disorders, the portfolio has significant commercial relevance. Any competitor developing frequency-personalised or EEG-synchronised TMS devices — or software platforms that optimise rTMS protocols using patient brain data — faces direct infringement exposure and should conduct a thorough FTO assessment before market entry.
Should your team run an FTO against US8480554B2 and Wave’s TMS portfolio?
If your organisation is developing EEG-guided TMS devices, personalised brain stimulation protocols, or digital platforms that use intrinsic frequency or Q-factor data to calibrate neuromodulation therapy, Wave Neuroscience’s four-patent portfolio presents a credible infringement risk. The Markman constructions from this case — now public — define how courts are likely to interpret key claim terms. R&D and product teams should review their technical specifications against those constructions before scaling or launching.
PatSnap Eureka’s FTO Search Agent can map your product architecture against the full claim scope of US8480554B2, US9446259B2, US9272159B2, and US5921366A simultaneously, identifying overlap, design-around opportunities, and prior art relevant to validity. With the litigation record from this case — including the Markman order — now fully indexed, Eureka can surface contextualised risk assessments in minutes rather than weeks.
Run a freedom-to-operate analysis on US8480554B2 to assess your product’s exposure
Run FTO in Eureka →Similar EEG-guided TMS and neurostimulation patent cases in U.S. district courts
Explore related patent infringement actions involving transcranial magnetic stimulation, EEG-based neuromodulation, and brain stimulation device patents in U.S. federal courts.
What this case signals for the neurostimulation IP landscape
Four EEG-guided TMS patents, a contested Markman hearing, and a joint dismissal — here is what competitors and IP teams should take away.
Claim construction shifts leverage — watch the Markman record closely
The court’s construction of ‘pre-selected intrinsic frequency’ and Q-factor terms in November 2022 appears to have materially affected the litigation trajectory. Companies building EEG-calibrated neurostimulation products should analyse the Markman record to understand how Wave’s patent claims are likely to be scoped in any future assertion.
Joint dismissal with prejudice typically signals a negotiated resolution
A bilateral with-prejudice dismissal — especially after 1,242 days and a full claim construction — is rarely a walk-away. Industry practice suggests a licence, commercial arrangement, or technology access deal frequently accompanies these outcomes. Monitoring subsequent regulatory filings and product launches by both parties may reveal the commercial shape of the resolution.
Wave v PeakLogic — key questions answered
The case was dismissed with prejudice by joint motion of the parties on December 16, 2024. The court granted the joint motion, terminating all claims and counterclaims with each side bearing its own costs and fees. The dismissal with prejudice means Wave Neuroscience cannot refile these patent claims against PeakLogic or Dr. Murphy.
Wave Neuroscience asserted four U.S. patents: US8480554B2, US5921366A, US9446259B2, and US9272159B2. These patents collectively cover EEG-guided personalised transcranial magnetic stimulation therapy, including methods for targeting pre-selected intrinsic brain frequencies, Q-factors, and EEG phase to calibrate rTMS treatment — the technology underlying Wave’s PrTMS® platform.
On November 10, 2022, the court issued constructions for disputed TMS patent claim terms. ‘Pre-selected intrinsic frequency’ was construed as ‘a targeted intrinsic frequency chosen before treatment.’ The ‘moves’ limitation was construed as ‘shifting or altering to be substantially the same as the pre-selected frequency.’ The court also construed ‘Q-factor’ and ‘EEG phase’ terms similarly, and found ‘adjusting output of the magnetic field based on the subject’s intrinsic frequency’ needed no construction.
Dr. Kevin T. Murphy, M.D. was named alongside PeakLogic, Inc. as a co-defendant. The public record does not specify the precise theory of individual liability, but in patent infringement cases, individual defendants are typically named where they are alleged to be active inducers of infringement or direct infringers in a personal capacity — common in cases involving clinician-founders with operational control over accused products.
The accused products included PeakLogic’s MindSet platform using PrTMS® protocols, the PeakInput™ patient monitoring and therapy optimisation tool, and NeoSync’s EEG Synchronized TMS (N.E.S.T.) device. The case centred on whether these products infringed Wave’s patent portfolio covering EEG-calibrated, frequency-personalised repetitive transcranial magnetic stimulation therapy methods.
PatSnap Eureka searches patents and litigation data to answer instantly.