PTAB awards victory to Bass in Diprivan IPR

The Patent Trial and Appeal Board (PTAB) has handed victory to hedge fund manager Kyle Bass in an inter partes review (IPR) against a European healthcare company Fresenius Kabi-owned patent.

The patent, which centred on Fresenius’ anesthetic agent Diprivan (propofol), was invalidated by the board on Wednesday, June 7.

“We conclude that petitioner has established by a preponderance of evidence that claims … of the ‘010 patent are unpatentable as obvious,” said the PTAB.

Kyle Bass, along with Erich Spangenberg, had jointly filed a petition in November 2015, requesting IPR of certain claims of US patent number 8,476,010 B2.

Erich Spangenberg is the founder of IP Navigation Group, a company that focuses on predictive analytics with an emphasis on patents.

Bass and Spangenberg argued that the patent claims were obvious in light of an article called "Physio-chemical Interactions and Storage of Diprivan" by Farinotti, and US patent numbers 5,383,864 and WO 2000/012043.

In June 2016, the PTAB instituted IPR.

The PTAB said: “Having reviewed the arguments and evidence, we agree with petitioner and note that patent owner does not dispute petitioner’s argument.”

It added that it was persuaded that Bass and Spangenberg had shown that each limitation of the claims would have been obvious to a person of ordinary skill in the art.

“Having considered the parties’ arguments and evidence, we evaluate all of the evidence together to make a final determination of obviousness,” concluded the board.

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