By Matthew L. Cutler, Principal
Many in the pharmaceutical industry have been concerned about becoming a target of the Coalition for Affordable Drugs, the group backed by hedge fund manager Kyle Bass. But yesterday the first target of Bass’s strategy, Acorda Therapeutics, scored a big win when the PTAB declined to institute review in the first two IPRs filed by Bass’s group.
In February Bass’s group filed IPR petitions against two Acorda patents, 8,007,826 and 8,663,685. Both are listed in the Orange Book for Acorda’s Ampyra tablets used to treat walking difficulty in patients with MS; they are the last-expiring patents listed for that product.
The Board found that both petitions failed to established that the relied-upon art was in fact prior art. In each IPR petition, the Coalition relied on two poster presentations, one from a conference in September/October 2001, and another from a conference in September 2002. Each was before the priority date, but the Board agreed with Acorda that neither was established as a “printed publication.” Because the Coalition did not show that the posters were distributed (rather than presented) or otherwise indexed, the Board considered the factors from In re Klopfenstein, 380 F.3d 1345, 1349 n.4 (Fed. Cir. 2004) to determine whether the presentations nonetheless qualified. Those factors are:  the length of time the display was exhibited,  the expertise of the target audience,  the existence (or lack thereof) of reasonable expectations that the material displayed would not be copied, and  the simplicity or ease with which the material displayed could have been copied. According to the Board, the Petitioner failed to make a sufficient showing that these factors were met.
So, the first decisions in the Bass-filed applications did not succeed, but it may not matter. If the speculation is correct, the Coalition already made its money in the stock market.