From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Tuesday, 25 August 2015

Breaking News: PTAB declines Bass hedge fund IPR challenges in Ampyra dispute

What's to watch, when there is exciting
IP news to blog about?
 
Just as she was getting settled for some mindless television viewing after a long day, the AmeriKat received news that the USPTO's Patent Trial and Appeal Board (PTAB) has declined to institute two inter partes reviews (IPRs) filed by the Coalition for Affordable Drugs (the brain child of hedge-fund manager Kyle Bass - see AmeriKat post here).

The IPRs in respect of US Patent Nos 8,663,685 (see petition here) and 8,007,826 (see petition here) that protect two of the five Orange Book-listed patents for AMPYRA - Acorda's MS drug - attracted considerable attention due to Bass's business model.  The theory behind the model was that the Coalition for Affordable Drugs would file IPRs, publicize the challenge (thereby creating information flows in the market) and then bet against the patentee's shares.  See Bloomberg and the Wall Street Journal for further details.

In both the '685 decision and the '826 decision, the PTAB stated that that they were not convinced that two posters cited by the Coalition constituted prior art as they were not "sufficiently publicly accessible to qualify as a 'printed publication' under Section 102(b)".  Therefore, the Coalition for Affordable Drugs
"has not established that there is a reasonable likelihood that it would prevail with respect to at least one of the claims challenged in the Petition, as required under 35 U.S.C. Section 314(a)."
In the analysis, the PTAB held that the Coalition provided "insufficient evidence" on the duration of the display of the posters, whether anyone actually saw the posters or whether anyone could have copied the posters.  The decision continued:
"Overall, evidence of record fails to demonstrate that the posters nonetheless were made sufficiently publicly accessible. For example, evidence of record does not indicate adequately how long the posters were presented to anyone, or to whom exactly, or what conversations anyone might have had with authors about the posters. In addition, our review of the posters themselves indicates that they both present relatively dense material in a small space. Ex. 1008, 2; Ex. 1009, 1. As stated by the Federal Circuit, the “more complex a display, the more difficult it will be for members of the public to effectively capture its information.” Klopfenstein, 380 F.3d at 1351."
Any patent litigator will tell you evidence is key - you find the people who saw the posters, you get their evidence, you get statistics about how many people were at the conference, etc.  You don't leave anything to chance.  So why was the evidence of prior art here so "insufficient"?  What happened?  Was it just a mere lack of convincing evidence or was the PTAB arguably overly pedantic in examining the evidence? Or something else?  Save for this press release from Acorda, there has been little commentary on the decision so far, but the AmeriKat anticipates that speculation will surely run rampant over the coming days.

All the AmeriKat knows for sure right now is that Acorda's shares are strongly up on today's trading  (rising as much as 32%) and that a few pharmaceutical companies will be resting a little bit easier tonight.  However, the fight is not over.  Bass still has several more IPRs in the pipeline and, without any comments from the PTAB on the standing of the Coalition, that issue will likely have to be dealt with by the upcoming patent reform legislation (see AmeriKat post here).

A KatPat goes to Mark Ridgway (Allen & Overy), for alerting the AmeriKat to this decision.

3 comments:

Anonymous said...

How much did he make selling the shares again?

Anonymous said...

Interesting that whilst AIA had made life more difficult for NPE's to make money suing under invalid patents, it has also created the new business model/tactic of weakening companies by attacking their patents in post-grant USPTO proceedings.

James Wagner said...

The market tends to find ways to make money, and laws almost always have unexpected consequences.

On another point, isn't it fascinating how the same facts can be argued for the opposite conclusions in litigation.

Here there was 'too much information' on the poster, so its not prior art because there's not enough evidence someone would have had time to read it. On the other hand, if there had been less information on the poster it would have been a 'non-enabling disclosure' that was merely a pointer and not a signpost towards the invention.

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