02.04.18

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The So-called ‘Big Pharma’ Industry is Hoping to Weaken If Not Eliminate PTAB

Posted in America, Patents at 5:16 pm by Dr. Roy Schestowitz

Not generics

Pharma

Summary: After the saga of Kyle Bass, who was filing many IPR petitions, companies like Allergan resort to “scams” in an effort to dodge scrutiny of their patents

TECHRIGHTS rarely deals with any patents other than software patents. Having said that, there’s plenty at stake in PTAB, which invalidates many software patents. This is why we write about Allergan; in some cases, PTAB is put at risk by drugs. Lots of monopoly money is at stake. The giants are afraid of genetics.

John Cravero’s overview of PTAB cases regarding medicine (or chemistry or life sciences more broadly/for the most part) was published some days ago. So was this post from the Pharma Patents Blog, which said that the “Federal Circuit Emphasizes Need For Reasonable Expectation Of Success” in relation to the following:

The patent at issue was Genzyme’s U.S. Patent 7,897,590, directed to methods of promoting the flow of stem cells into blood for transfusion using a specific combination of drugs. The stem cells are used to treat non-Hodgkins lymphoma and other blood cancers.

Over the weekend IAM also remarked on hype and speculations about “a pharma patent deal-making surge” — a hype which it generally rejected, noting: “A flurry of pharmaceuticals transactions in January has led several observers to describe the past month as the best start to M&A in recent years, and has further encouraged predictions of a surge in patent-driven acquisitions in 2018.”

Arthrex, a medical device company, was recently mentioned in relation to estoppel and it’s mentioned again today (Sunday is busy at Watchtroll). It was also alluded to some days ago by Finnegan. It involves PTAB:

During the early stages of an IPR proceeding initiated by Smith & Nephew, patent owner Arthrex disclaimed all patent claims challenged in the petition. Arthrex then filed a preliminary response contending that institution should be denied due to the disclaimer. To avoid the estoppel effects of 37 C.F.R. § 42.73(d), Arthrex also argued that an adverse judgment should not be entered. The PTAB, however, issued an adverse judgment against Arthrex, and the Federal Circuit affirmed.

Yes, the Federal Circuit (CAFC) typically agrees with PTAB. In some cases CAFC is even tougher than PTAB on patent quality, as Watchtroll cared to admit yesterday. To quote:

In an appeal from an IPR in which the Board upheld the patentability of several patent claims, the Federal Circuit vacated the decision and remanded to the Board with instructions to consider the patentability of certain dependent claims.

We are watching these things closely even when it isn’t software that’s at stake because there are many vicious attacks on PTAB and sometimes CAFC as well these days. The goal is to eliminate every IPR and shield software patents, among other bad/abstract patents. We cannot just let that happen.

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