Mimesis Law
4 July 2020

Big Pharma’s Hooks Are In the Water, Fishing For Bass

Aug. 11, 2015 (Mimesis Law) — The dog days of August may be here, but the Bass-related IPR action seems to never rest. With the first substantive decisions on Bass’ IPR filings against Acorda expected by month’s end (see here and here) it is important to remember that the IPR filings by Bass are each proceeding according to their own timelines. As a result, there are going to be periods of respite where not much seems to be happening in the IPR’s and flurries of activity — as we saw last week when Celgene and Pharmacyclics took their opportunities to challenge Bass.

Procedurally, the two drug companies used slightly different document filings to ask for the same result — that the Bass IPR’s be denied. Not on their merits, but as a sanction for Bass’ allegedly improper conduct. Pharmacyclics, for its part, recycled Acorda’s arguments that the IPR filings are for an improper purpose, because of Bass’ stated intention to short the stock of the targeted companies. Not much new there, and the PTAB treatment of Acorda’s arguments should shed light on how Pharmacyclic’s argument will fare.

Celgene had a little bit more to say, while arguing for the dismissal of the petition as a sanction. Interestingly, Celgene pointed out that Bass’ co-party in interest, Erich Spangenberg, had reached out to Celgene twice prior to filing the IPR petition with Bass. Each time, Celegen alleged, Spangenberg made at least an implicit demand for payment to avoid filing of the IPR petition. As a result, and coupled with the allegedly “new” short-the-stock strategy espoused by Bass, Celgene asked the PTAB to dismiss the petition as being filed for an improper purpose.

The die has been cast, and all that remains is to see how the PTAB treats these types of arguments. They could close the door to Bass for announcing his short-selling strategy, or punt and decide his petitions on the merits. It will be interesting end of summer either way.


The Week(s) Ahead — Expected Events

  1. Bass IPR Decisions – Late August

Disclosures and Disclaimers:

Nothing in this material is intended to constitute legal or investment advice of any kind, nor is any of this material based on any non-public information of any kind. In addition to my work at Markman Advisors, I am also a name partner at a NYC-based intellectual property litigation boutique firm, Kroub Silbersher & Kolmykov PLLC (www.kskiplaw.com). Markman Advisors is affiliated with a Houston-based investment management firm, Perdix Capital Management, which may have existing or potential positions relating to situations discussed in this material. Markman Advisors also provides consulting services to buy-side investors, including hedge funds and family offices, that may also have or enter into positions relating to situations discussed in this material. 

Main image via Flickr/Rob and Stephanie Levy

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