Bass IPR Activity Heats Up in August

Written by Tasha Francis.

August 2015 has been a busy month for Kyle Bass.

First, this month alone, Kyle Bass has filed six IPR petitions. On August 7, 2015, Bass filed another IPR petition (IPR2015-01680) against Pozen Inc. targeting U.S. Patent No. 8,852,636 which covers the NSAID drug VIMOVO. The IPR challenged all 18 claims of the patent, and is the third IPR targeting Pozen. Five days later, on August 12, 2015, Bass filed another petition (IPR2015-01718) targeting VIMOVO, but this time attacking U.S. Patent No. 8,945,621 owned by Horizon Pharma USA, Inc. This IPR also challenges all of the patent's claims. The following day, August 13, Bass filed IPR2015-01723 aimed at Bristol-Myers Squibb and its drug ELIQUIS covered by U.S. Patent No. 6,967,208. This IPR challenges 49 of the patent's 103 claims. Yesterday, Bass filed three IPRs against Anacor Pharmaceuticals, Inc. and its fungal infection drug KERYDIN. IPR2015-01776 targets U.S. Patent No. 7,582,621, and IPR2015-01780 and -01785 both target U.S. Patent No. 7,767,657. All three IPRs challenge all claims of the patents. For those keeping count, Bass has now filed a grand total of 22 IPR petitions against 10 different pharmaceutical companies (see Table below).

Several real parties-in-interest join Bass on these petitions including Erich Spangenberg and various investment funds including Bass-directed funds named the "Coalition for Affordable Drugs" (CFAD). According to the State Department of Delaware, Bass has incorporated 15 LLCs bearing the name Coalition for Affordable Drugs I-XV. To date, Bass has used 9 CFADs, with each CFAD targeting a distinct pharma company or product. For example, CFAD is joined as a real party-in-interest in the two IPRs targeting Acorda, CFAD VI is a real-party-in-interest in the five IPRs against Celgene, and CFAD VII has been used to target VIMOVO in IPRs against patent owners Pozen and Horizon. Thus, six CFADs lay in waiting for potential future use by Bass.

Also, this month Bass has responded to five motions for sanctions. Celgene filed motions for sanctions on July 28 and 30 with Bass filing answering briefs on August 11-13. Pharmacylics filed its motion for sanctions on July 30 with Bass answering on August 13. A summary of Bass' response to the Celgene brief can be found here. Per the PTAB order granting permission to file sanctions motions, the patent owners are to respond within five business days of petitioners' opposition. Thus, Celgene's first responsive briefs were expected Tuesday August 18th. However, Celgene's response wasn't filed until late last night.

Recent filings by Bass in the Celgene IPRs provide insight behind the delay. On August 19th, Bass filed an unopposed motion to withdraw the declaration of Dr. Julie Wu, Bass' expert on short-selling, from its opposition to Celgene's motion for sanctions. The issue with Dr. Wu's declaration began on August 13th when Celgene requested that Bass "provide Dr. Wu's availability for deposition by the close of business tomorrow." Bass immediately rejected this request. The following day, Celgene requested "a Board call to address its position that 'it is entitled to depose [Bass's] declarant before preparing its reply papers.'" IPR2015-01096, Paper 16 at 2 (PTAB Aug. 19, 2015). That call took place on August 19th, and Bass stated that "it does not think it should be required to shoulder the burden and expense of a deposition at this stage of the proceeding." Id. The Board decided to take the request for deposition under advisement, which would delay the proceedings even longer. Bass then submitted the motion to withdraw the declaration as a way to avoid further delay and expense. Shortly thereafter, Celgene's responsive brief was filed. The reply continues to argue the petitions are improper under the AIA and do not serve the public interest. Furthermore the brief asserts the Noerr-Pennnington doctrine does not shield CFAD from sanctions and the Board is empowered to dismiss the petition prior to institution.

The last week of August is likely to be just as busy for Bass. First, we should expect to see Pharmacyclics' answer to Bass' brief opposing their sanctions motion. More importantly, the first PTAB decision on whether or not one of Bass' IPR petitions will be instituted is expected next week. Specifically, on or about August 26, the PTAB is expected to decide whether or not IPR2015-00720, filed against Acorda's patent 8,663,685 covering AMPYRA will be instituted.

We will report on this decision as soon as it becomes available.

Table Summarizing Bass' IPR Petitions