Last week, in a decision that has surprised and worried some, the Board instituted one of the numerous IPRs for which Kyle Bass and the Coalition for Affordable Drugs (IPR2015-00988) filed petitions. Previously, the Board had been able to deny some of Bass’s petitions based on the petitions’ failure to demonstrate that references qualified as prior art (which we discussed here). However, the Board later declined to sanction Bass for abuse of process and misuse of proceedings in filing other similar petitions (which we discussed here).
In this proceeding, Bass attacked all four claims of U.S. Patent No. 6,773,720, assigned to Cosmo Technologies Ltd., asserting three grounds of unpatentability. This patent covers controlled release oral pharmaceutical compositions containing mesalazine, which is used to treat Crohn’s disease and ulcerative colitis. Cosmo argued in its preliminary response that institution should be denied for failings both of the three asserted grounds and of the identification of the real parties-in-interest. Nevertheless, the Board determined that Bass had established a reasonable likelihood that he would prevail on one of the grounds asserted.
The fate of this patent remains to be seen, but this decision places it firmly in the hands of the Board and further legitimizes Bass’s strategy. Will this be one of many such decisions to come? Clearly, the saga of Kyle Bass is far from over.