Kyle Bass & Friends Swing and Miss in First Two Attempts at IPR
Today, the Patent Trial & Appeal Board (PTAB) denied institution of IPR 2015-00720 and IPR2015-00817 (here and here). These IPR petitions, targeting U.S. Patents 8,663,685 and 8,007,826 of Accorda Therapeutics, were advanced by the so-called "Coalition For Affordable Drugs." The Coalition, more widely recognized as a creation of hedge fund manager Kyle Bass, has filed 20+ petitions in the past few months against various drug patents.
These PTAB denials are likely the first in a long series of disappointments for the Coalition.
The '720 and '817 proceedings were denied as the petitions did not demonstrate sufficient evidence as to the publication of the underlying references (meeting posters). The Board explained:
Here, we agree with Patent Owner that Petitioner presents insufficient evidence as to how long the Hayes or Goodman poster was presented at any scientific meeting. Prelim. Resp. 16–17. The only credible evidence of record indicating that the posters were presented at all is in the form of IDSs stating that the posters were "presented."
Similarly, Petitioner presents insufficient evidence in relation to "the expertise of the target audience," i.e., anyone who actually saw either poster. Id. at 17. Petitioner likewise presents insufficient evidence in relation to any reasonable expectation that one could have copied the poster material, or evidence regarding the ease with which the poster material could have been copied. Id. at 18–19. 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. 1031, 2; Ex. 1030, 2. 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.
Given these decisions, and the outstanding sanction motions in the other Coalition petitions (for improper use of agency resources), perhaps Mr. Bass should set up a second fund that takes "long" positions in the patents he has targeted. Just a suggestion, this is only going to get worse.