The coalition alleged several grounds of obviousness, each ground based on at least one alleged prior art poster presentation. The coalition argued that the posters were prior art based on statements made by the applicants in information disclosure statements submitted during prosecution of the patents. Acorda filed a preliminary response. In its response Acorda first alleged that the coalition filed its petition for an improper purpose. Acorda then argued, inter alia, the coalition failed to establish that the poster presentations were prior art.
The PTAB did not discuss Acorda’s allegation that the Coalition filed the petitions for an improper purpose. Instead, the PTAB analyzed whether the Coalition had made a threshold showing that the posters were “printed publications.” The PTAB first explained that submission of an IDS does not constitute an admission that a reference is prior art. The PTAB then explained that the Coalition had failed to introduce sufficient evidence related to the amount of time the poster was displayed, the expertise of the audience, or whether there was an expectation that anyone copied the poster. The PTAB also noted that the poster presented very dense material, and the more complex the material, the more difficult it would have been for members of the public to capture the material. At bottom, the PTAB held that the coalition had failed to introduce sufficient evidence that the references were prior art, and declined to institute review. The PTAB left for another day consideration of whether such petitions were filed for an improper purpose.
Coalition for Affordable Drugs (ADROCA) LLC v. Acorda Therapeutics, Inc., IPR201500817, IPR201500720 (PTAB Aug. 24, 2015).