Authored by Michelle Carniaux
A little over six months ago, we identified certain “outsiders” who have filed IPR petitions. These outsiders include financiers, activists, and patent defense firms, none of whom were accused or at risk of being accused of patent infringement. While they account for only around 2% of the IPR petitions filed to date, one group of these outsiders seems to have raised the hackles of Big Pharma. The Coalition for Affordable Drugs entities (Kyle Bass et al.) have filed 33 IPR petitions against Big Pharma patents (allegedly) as part of a stock shorting investment strategy.
In any event, we took a look at the outsiders’ IPR institution rates to see how they are doing in the PTAB. As shown in the chart below, the financiers, including the Coalition for Affordable Drugs entities, have a combined institution rate of about 38%. While the Coalition for Affordable Drugs entities have an institution rate of only about 20%, only five of their 33 petitions have been substantively considered by the PTAB. Also, after petitions against two Acorda patents were denied, the Coalition entities doubled down by filing additional IPR petitions against the same two patents and two additional Acorda patents.
The activists have a somewhat higher combined institution rate at 70%, with Askeladden L.L.C.1 having an institution rate of about 75%. Somewhat surprisingly, the patent defense firms have a lower combined institution rate of about 25%.
1Askeladden LLC, through its Patent Quality Initiative, is “dedicated to improving the understanding, use and reliability of patents in financial services and elsewhere.”