PTAB deals Bass another blow

The Patent Trial and Appeal Board (PTAB) has rejected another inter partes review (IPR) petition filed by hedge fund manager Kyle Bass’s organisation the Coalition for Affordable Drugs.

The target of the IPR was Pharmacyclics’s US patent number 8,754,090.

The ‘090 patent covers a method for treating mantle cell lymphoma, an aggressive form of cancer, and is used in anti-cancer drug Imbruvica (ibrutinib).

Bass’s coalition filed the IPR petition in April this year arguing that claims one and two of the patent were obvious.

In its decision, handed down on Monday, October 19, the PTAB agreed with Pharmacyclics that evidence submitted by the coalition about the patent’s obviousness failed to meet the threshold of a “printed publication”.

Under US law, a printed publication is used as an example of prior art in claims of obviousness. But, in order to succeed, a challenger must show that the publication has been disseminated among those ordinarily skilled in the subject at the time of the owner filing the patent.

The coalition had failed to present a printed publication as evidence of existing prior art, the PTAB found.

Instead, it presented a document from the website clinicaltrials.gov that was dated February 2009. The evidence reference number for the webpage is NCT00849654.

For the PTAB, this evidence failed to meet the threshold because it had not shown to be disseminated among the relevant individuals.

“After reviewing the arguments and evidence, we agree with the patent owner that petitioner has not met its initial burden of production to show the webpage is a prior art printed publication,” the PTAB said.

“Because petitioner relies on NCT00849654 for both asserted grounds to challenge the patentability of the claims, we also determine that petitioner has failed to establish a reasonable likelihood that it would prevail in asserting that claims one and two of the ‘090 are unpatentable,” the PTAB added.

Bass and his coalition have become well-known for filing numerous IPR petitions against a number of biotechnology and pharmaceutical companies.

Earlier this month, marked the first time the coalition found success after the PTAB’s three-judge panel agreed to institute an IPR of a patent owned by Shire covering its Lialda (mesalamine) drug.

Before the institution, the PTAB had rejected petitions filed against both Biogen and Acorda Therapeutics.

Pharmacyclics was acquired by AbbVie in a $21 billion deal in March 2015 but AbbVie was not a named defendant.