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PTAB Poised To Take Up Hedge Fund Hijinks in Celgene Cases

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Law360

John M. Covert discusses with Law360 the Patent Trial and Appeals Board's (PTAB) apparent unwillingness to address the possible misuse of America Invents Act (AIA) proceedings by a group with hedge fund ties, and the likelihood the Board will address this issue in similar future proceedings.

The question arose after the Coalition for Affordable Drugs, an organization with close ties to hedge fund manager Kyle Bass' Hyman Credes Master Fund LP, filed for inter partes review (IPR) on two drug patents held by Acorda Therapeutics Inc. Acorda claimed the Coalition was misappropriating IPR proceedings for financial gain, but the Board failed to pass judgment on the issue. Legal experts are now closely monitoring similar proceedings between Celgene Corp. and the Coalition.

Mr. Covert told Law360 "The big questions over whether the filings were improper were left for another day. The board settled these two proceedings on evidentiary issues, but there are plenty more IPR filings by Kyle Bass and the Coalition for Affordable Drugs that are out there, and we are going to have to wait and see over time whether their strategy is going to work."

Discussing the likelihood the PTAB will address hedge fund "hijinks" in the upcoming Celgene case, Mr. Covert said, "I think the PTAB would rather stick to the patent law issues than get into the policy and abuse of process issues. If there is a way for the PTAB to go forward and decide Celgene on the merits similar to what it’s done in Acorda, that’s what I would expect."