PTAB Finds IPR Filing of Hedge Fund Has Merit

Today, in IPR2015-00988, the Patent Trial & Appeal Board (PTAB) instituted review of Cosmo Technologies patent 7,773,720. The patent is directed to controlled release oral pharmaceutical compositions containing 5-amino salicylic acid, also known as mesalazine or 5-ASA, as an active ingredient. Mesalazine is used to treat Crohn’s disease and ulcerative colitis, which involve inflammation of the intestines. (decision) This brings the Bass IPR petition record to 1-3, with several more decisions due this month (Celgene, Biogen, Jazz Pharma, NPS Pharma, Pharmacyclics Inc.)  filings.  

The petition filing proposed three grounds of unpatentability directed to claims 1-4 of the '720 patent, only one of which was accepted by the Board. Of course, at this point, Cosmo has yet to submit any evidence of its own, with the full administrative trial proceeding ahead. 

Whether or not claims 1-4 of this patent are ultimately cancelled remains to be seen as challenging patents in the unpredictable arts is, well, unpredictable. The continued viability of this investment model will likely depend on the outcome of the remaining petitions, (9) of which are due to be decided in the next month.  If the majority of those are declined, it would seem unlikely that the market will continue to take such filings seriously. On the other hand, if a majority are instituted this month, patent reform will be thrust back to center stage.