Kyle Bass Ampyra IPR challenge is ‘harassment’, says Acorda

Biotechnology company Acorda Therapeutics has urged the Patent Trial and Appeal Board (PTAB) not to institute an inter partes review (IPR) petition filed by the Coalition for Affordable Drugs, an organisation linked to hedge fund manager Kyle Bass.

In a preliminary response filed on Monday, December 14 Acorda described the coalition’s challenge as “a tool for harassment”.

At the centre of the dispute is US patent number 8,440,703, owned by Acorda.

The patent covers the administration of the Ampyra (dalfampridine) drug to patients dealing with multiple sclerosis (MS) and is used to help MS patients improve their walking.

Acorda has disputed the coalition’s claim that a 2003 filing by Acorda at the Securities Exchange Commission (SEC), which detailed the results of a clinical trial concerning attempts to treat MS, constituted a printed publication under US patent law.

A patent is deemed obvious if a printed publication outlining the operation of an invention is publicly available to those “ordinarily skilled in the subject matter” before the claimed invention date.

The ‘703 patent was issued in 2013, but cites a priority date of 2004.

The coalition filed the challenge in September, one of six challenges it made to patents covering Ampyra.

So far, the PTAB has refused to institute two of the coalition’s challenges but has yet to rule on the additional three.

But Acorda rejected the claim that the SEC filing constituted a printed publication.

In Monday’s filing it said the coalition was using IPRs as harassment tools and “not to challenge a particular patent” .

“As with its attacks on other patents protecting Ampyra, petitioner has not established a reasonable likelihood of success. Among other deficiencies, petitioner relies on material that it has not established is statutory prior art. Petitioner also relies on a legally deficient obviousness analysis,” Acorda concluded.