IPR Petition Up for Grabs

PTAB + IPR

We recently posted about the PTAB declining to sanction CFAD for filing IPRs.  In light of that holding, Erich Spangenberg, owner of nXn Partners, revealed his intention to make publicly available substantially final draft versions of IPR petitions for pharmaceutical patents that he believes are invalid.  Spangenberg does not care who files the petition, stating, “[m]y hope is that, via crowd-sourcing or some other way, people far smarter than me will comment on the petitions and make them even better.  After the petitions are polished and suitable for hanging in The Louvre of IPR petitions, perhaps some person with altruistic motives will file them or maybe a person that is mean to puppies will file them.”  To assist in these efforts, he has even lined up law firms and experts with fee arrangements at a fraction of normal market pricing.  Spangenberg states that he won’t file the petitions, pay the legal fees, or pay the expert fees himself because he wants to avoid “dealing with the lack of altruism rubbish” by being a real party in interest.

Last week, Spangenberg made good on his promise by releasing an entire draft IPR petition against DepoMed, Inc., for medications used in the treatment of chronic pain (Nucynta and Nucynta ER).  Nucynta is protected by three Orange Book patents.  Nucynta ER (the extended release version) is protected by eight Orange Book patents.  Spangenberg states that the basis for this petition is “inconsistent statements [that] were made during the prosecution of the ‘364 patent in the US and in Europe with respect to the active ingredient in Nucynta and Nucynta ER.”  If a party is interested in filing his petition, he is willing to provide two expert declarations and related experimental data in support of the petition.  He also clarifies that he does not hold a long or short position in DepoMed, and is not seeking monetary compensation for the petition or related declarations.

So far, no party has filed an IPR petition against DepoMed using Spangenberg’s draft petition.  Stay tuned to the Big Molecule Watch as we monitor developments on this issue.

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