Yesterday the PTAB issued institution decisions in five Bass IPR petitions—denying institution of IPR2015-01086 against Biogen and instituting four IPR petitions against Celgene (IRP2015-01092, 01096, 01102, and 01103).
Celgene previously sought sanctions motions against Bass alleging his use of the IPR proceedings served no legitimate interest and constituted an abuse of process. In support of their motion, Celgene stated “one or more of the identified RPI previously threatened to file IPRs against the challenged patents unless Celgene met their demands. When Celgene did not pay, the RPI—apparently in furtherance of their efforts to abuse the IPR process for private financial gain—filed the present petitions.” The Board denied the sanctions motions, stating they “take no position on the merits of short-selling as an investment strategy other than it is legal, and regulated.” (IPR2015-01092, Paper 21 at 3.) The PTAB also held “that Congress did not limit inter partes reviews to parties having a specific competitive interest in the technology covered by the patents.” (Id. at 4.)
Now the PTAB has found the Bass petitions against Celgene have established there is a reasonable likelihood Bass will prevail in demonstrating the unpatentability of at least one challenged claim. However, institution of an IPR does not necessarily mean Bass will succeed in invalidating the patent claims. To prevail, Bass must establish by a preponderance of the evidence—a higher standard that “reasonable likelihood”—that the challenged claims are unpatentable.
To date, the PTAB has now rendered a decision on 13 of the 34 IPR petitions filed by Bass, granting institution of 7 petitions. With an institution rate of 53.8%, Bass’ petitions are faring better than other petitions in the biopharma space. As of the beginning of the month, approximately 74 biopharma IPRs were filed to date in 2015. Institution was granted in 28.4% of the cases, granted in part in 20.3% of the cases, and denied in 51.4% of the cases.
With two more institution decisions expected in November (against Celgene and Pozen), we will continue to monitor the activity on these petitions and provide additional commentary.