Yesterday, the PTAB issued its first two decisions addressing inter partesreview petitions filed by Kyle Bass and his hedge fund Hayman Capital. In both decisions, the PTAB denied institution of inter partes review of two patents for the treatment of multiple sclerosis owned by Acorda Therapeutics. While Acorda prevailed in these two instances, Big Pharma did not get the silver bullet against Bass et al. it was seeking. The PTAB denied the petitions because it found that the petitions did not present sufficient evidence that certain documents relied upon constituted prior art, but did not address other issues raised by the patent owner that may have been applicable to the other 21 petitions Bass et al. filed against Big Pharma patents.
We previously wrote how Big Pharma was attempting to fight back against Bass’ IPR campaigns by, for example, moving for sanctions alleging that Bass and his related companies are abusing the IPR process for financial gain by filing IPR petitions allegedly for the purpose of affecting stock prices of target Big Pharma companies. In Acorda’spreliminary responses to the petitions filed against two of its patents, Acorda argued that because the petitions were filed for an improper purpose, the PTAB should exercise its discretion and refuse to institute the review. Acorda also argued that the petitions should be denied for failing to name all real parties-in-interest since they did not name all of the individual investors of the hedge funds. The PTAB did not address either of these arguments.
While the loss of these two battles may be a setback for Bass et al., they have not lost the war.