Filed: June 3, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________
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`COALITION FOR AFFORDABLE DRUGS II LLC.
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`Petitioner
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`v.
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`NPS PHARMACEUTICALS, INC.
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`Patent Owner
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`____________
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`Cases IPR2015-00990 and IPR2015-010931
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`Patent 7,056,886
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`____________
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`PATENT OWNER’S MOTION FOR ADDITIONAL DISCOVERY
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`
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`1 Per the Board’s Order authorizing this motion (see, e.g., IPR2015-00990, Paper 8,
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`fn 1), the word-for-word identical paper is filed in each proceeding identified in the
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`heading.
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`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`COALITION FOR AFFORDABLE DRUGS II LLC.
`
`Petitioner
`
`v.
`
`NPS PHARMACEUTICALS, INC.
`
`Patent Owner
`
`____________
`
`Cases IPR2015-00990 and IPR2015-010931
`
`Patent 7,056,886
`
`____________
`
`PATENT OWNER’S MOTION FOR ADDITIONAL DISCOVERY
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`
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`1 Per the Board’s Order authorizing this motion (see, e.g., IPR2015-00990, Paper 8,
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`fn 1), the word-for-word identical paper is filed in each proceeding identified in the
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`heading.
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`
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`IPR2015-00990 and IPR2015-01093
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`I. STATEMENT OF RELIEF REQUESTED
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`Patent Owner NPS Pharmaceuticals, Inc. (“NPS”) moves under 37 C.F.R. §
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`42.51(b)(2)(i) and (ii) in the interests of justice for an order requiring Petitioner to
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`respond to the Request for Production of Documents and Things and
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`Interrogatories attached as Exhibits 2001 and 2002, respectively, and to produce a
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`witness to testify on the topics attached as Exhibit 2003. Discovery is requested to
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`determine all of the real parties-in-interest (“RPIs”) in the Petition. This motion
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`was authorized by Order of the Board on June 2, 2015. See IPR2015-00990, Paper
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`8, 3; IPR2015-01093, Paper 7, 3.
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`II. STATEMENT OF REASONS FOR THE RELIEF REQUESTED
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`A. SUMMARY OF THE ARGUMENT
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`Public documents, including publicly available registration statements, Form
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`D’s and Form ADV’s, show that this Petition was brought by the Coalition for
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`Affordable Drugs II LLC (“Petitioner” or “Coalition”) on behalf of numerous
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`natural and non-natural persons who purposely and specifically funded the Petition
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`and will benefit from it. See generally Ex. 2004 2; Ex. 2005 3. All of these persons
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`2 Ex. 2004 is an overview of the general structure and regulation of hedge funds,
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`which the Board authorized during the May 29, 2015, telephone conference.
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`1
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`IPR2015-00990 and IPR2015-01093
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`must be named as RPIs. However, they are not.
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`Rather, the Petition names only a select portion of these persons,
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`i.e., the
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`Coalition, Hayman Credes Master Fund L.P. (“Credes”), Hayman Orange Fund
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`SPC – Portfolio A (“HOF”), Hayman Capital Master Fund, L.P. (“HCMF”),
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`Hayman Capital Management, Inc. (“HCM”), Hayman Offshore Management, Inc.
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`(“HOM”), Hayman Investments, L.L.C. (“HI”), nXn Partners, LLC (“nXnP”), IP
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`Navigation Group, LLC (“IPNav”), Kyle Bass (“Bass”), and Erich Spangenberg
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`(“Spangenberg”) (collectively, “Coalition
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`et al .”). Pet., 3-4.
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` Furthermore, the
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`Petition states that only HCM, Bass, nXnP, and Spangenberg have authority to
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`direct or control this proceeding and that only HCM, the Coalition, Credes, HOF,
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`and HCMF (collectively, the “Named Funders”) are funding it. Id.
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`The evidence available to NPR shows otherwise. Discovery is, therefore,
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`sought to expand upon and corroborate the public documents that NPS has already
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`carefully examined and to identify particularly these unnamed RPIs.
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`The Coalition et al . include several investment vehicles whose structures,
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`funders, governance, and controlling parties are not publicly disclosed. These
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`3 Ex. 2005 is an illustration derived from public information of relationships
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`among the named RPIs and some of the unnamed RPIs discussed in this motion.
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`(Blue = named RPI; Green = unnamed RPI).
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`2
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`IPR2015-00990 and IPR2015-01093
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`vehicles and undisclosed persons include closely held hedge funds, master funds,
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`feeder funds, pooled investment funds, segregated portfolio companies, and their
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`officers, directors, owners, managers, trustees, and investors.
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`See generally Ex.
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`2004; Ex. 2005. Closely held investment funds operate differently than publicly
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`traded companies. For example, hedge funds are often created for a specific
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`purpose (e.g., the Coalition was created to bring this IPR), and hedge fund
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`investors often can negotiate their individual rights as conditions to their
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`investment. Not all of the investors in a fund are equal; bigger investors often
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`negotiate better terms than others. Furthermore, investment managers, like Bass,
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`create layers of inter-related funds, business entities, and trusts for tax and general
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`liability reasons. However, those reasons cannot insulate these other persons from
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`being listed as RPIs. Here, the spider’s web of true RPIs must be unraveled to
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`prevent Petitioner from thwarting the statutory requirement to name them all.
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` NPS’s discovery requests are limited to evidence directly related to the RPI
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`assertions advanced by Petitioner. They (1) are supported by evidence showing
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`beyond speculation that something useful will be uncovered – public information
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`indicates that Petitioner has not identified all RPIs, (2) do not ask for litigation
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`positions or their underlying bases, (3) seek information unavailable without
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`discovery – NPS has exhausted the public information, (4) have easily
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`understandable instructions, and (5) are not overly burdensome to answer – they
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`3
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`IPR2015-00990 and IPR2015-01093
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`are directed only to the Named Funders and persons that NPS discovered from
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`public documents who are intimately related to them, and they seek information
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`that is essential to every entity, is kept in the regular course of business, and should
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`be readily available. See Garmin Int’l., Inc. v. Cuozzo Speed Technologies LLC ,
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`IPR2012-00001, Paper 26, 6-7 (PTAB Mar. 5, 2013).
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`B. MATERIAL FACTS
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`1. The Bass Strategy
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`Bass is the principal of HCM, which is an investment manager of over $2
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`billion of private funds. Ex. 2006, 4; Ex. 2007, 12. Spangenberg is a patent
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`attorney and a principal at nXnP and founded IPNav, a non-practicing entity. Pet.,
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`4; Ex. 2017, 2; Ex. 2018, 2. Bass and Spangenberg, in cooperation with, on behalf
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`of, and funded by others, are targeting pharmaceutical companies with IPR
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`petitions to bet against their stocks. See Ex. 2020, 1; Ex. 2021, 2-4; Ex. 2022, 1.
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`They have established new subsidiaries of Bass’s investment businesses as
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`nominal petitioners to carry out a “short activist strategy.” See Pet., 3; Ex. 2011, 1;
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`Ex. 2012, 1; Ex. 2013, 1; Ex. 2014, 1; Ex. 2015, 1; Ex. 2021, 2-4. Bass has said
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`that “[t]his is a short activist strategy and we hold the hammer.” Ex. 2023, 11.
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`Bass’s Coalitions have filed 13 IPR petitions, thus far. The first target,
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`Acorda Therapeutics Inc., saw its stock fall about 10 percent immediately after
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`IPRs were filed in February 2015. See Ex. 2019, 2; Ex. 2020, 1.
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`4
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`IPR2015-00990 and IPR2015-01093
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`2. Persons about Whom Discovery Is Sought
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`The Coalition is one of 15 Delaware LLC’s, each named “Coalition for
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`Affordable Drugs LLC __” and each formed from January to March 2015, to
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`execute Bass’s short activist strategy. See Ex. 2020, 2; Ex. 2021, 2, 4; Ex. 2022, 1;
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`Ex. 2024, 1-15. The Coalition is a wholly owned Credes subsidiary. Pet., 3.
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`However, Delaware law does not require Credes to contribute capital to be a
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`Coalition member. See DE Code § 18-301(a)-(b). There is no public information
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`disclosing who is funding the Coalition or the details of the Coalition’s interfaces
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`with the other RPIs.
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`Credes is a Cayman Islands-pooled investment hedge fund, and it appears to
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`be a “master fund” in a “master feeder” structure. 4 Compare Ex. 2007, 63-68, 74-
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`77, 82-86 (describing three other master-feeder structures managed by HCM), with
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`Pet., 3-4; Ex. 2011, 1-2; Ex. 2013, 1; Ex. 2014, 1-3; and Ex. 2015, 1. HOM is
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`Credes’ administrative partner. Pet., 3. However, no public filings disclose Credes’
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`limited partners,5 who controls Credes, who provides Credes’ capital, its pertinent
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`4 See Ex. 2004, Section A(1)(a) for an explanation of feeder fund structure.
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`5 Public filings suggest that Credes’ limited partners are feeder funds Hayman
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`Credes Fund L.P. (“Credes Onshore”) and Hayman Credes Offshore Fund L.P.
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`(“Credes Offshore”). These filings indicate that Credes, Credes Onshore, and
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`5
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`IPR2015-00990 and IPR2015-01093
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`people, or the details of Credes’ other interfaces with the other RPIs.
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`HCMF is a Cayman Islands hedge fund formed by HCM and is believed to
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`operate from the Bass Headquarters. See Ex 2007, 63; Ex. 2013, 1. HCMF is
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`another master fund. Ex 2007, 64. Its feeder funds are Hayman Capital Partners
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`(“HCP”) and Hayman Capital Offshore Partners (“HCOP”), 6 neither of whom are
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`named RPIs but both of whom invest substantially all of their assets in, and
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`
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`Credes Offshore were created over just a twelve-day span. Ex. 2012, 1; Ex. 2013,
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`1; Ex. 2015, 1. Moreover, the operation of Credes Onshore is, and the operation of
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`Credes Offshore is likely, located at 2101 Cedar Springs Road, Suite 1300, Dallas,
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`Texas 75201 (the “Bass Headquarters”). Ex. 2011, 1-2. Bass is HI’s managing
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`member, which is the general partner of HCM, which is the general partner of
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`Credes Onshore.
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`Id. Christopher Kirkpatrick (“Kirkpatrick”) is its General
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`Counsel. Id. at 6. Neither feeder fund is a named RPI.
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`6 HCP and HCOP are located in the Bass Headquarters. Ex 2009, 1; Ex. 2010, 1.
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`HCM and HOM are HCOP’s general partners; Bass, James Keyes (“Keyes”),
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`Kirkpatrick, and Jonathan Morgan (“Morgan”) are directors; and David Sung
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`(“Sung”) is manager, trustee, or director. Ex 2007, 65; Ex. 2009, 1-2. Bass, Keyes,
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`Kirkpatrick, Morgan, and Sung are also directors of HCM, which is general partner
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`of HCP. Ex 2007, 65-66; Ex. 2010, 1-2.
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`6
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`IPR2015-00990 and IPR2015-01093
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`conduct substantially all of their activities through, HCMF. Ex. 2006, 4; Ex. 2007,
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`64. HCM is HCMF’s general partner, and HOM is its administrative partner. Ex.
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`2006, 4; Ex. 2007, 63. HCMF’s master-feeder arrangement has 233 beneficial
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`owners, 96% of whom are unrelated to Hayman entities.
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`See Ex. 2007, 67. No
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`public filings disclose who these investors are or their rights.
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`Additionally, Bass, Kirkpatrick, Sung, Keyes, and Morgan are a general
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`partner, manager, trustee or director of HCMF. Ex. 2007, 63. However, only Bass
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`is a named RPI. Typically, general partners, managers, trustees, and directors have
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`some modicum of control and decision-making authority over the finances and
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`activities of an organization. Since HCMF is a privately-held hedge fund, no public
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`documents disclose this information or the details of HCMF’s other interfaces with
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`the other RPIs.
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`HOF is a Texas or Cayman Islands segregated portfolio hedge fund formed
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`in 2015 and located in the Bass Headquarters. Ex. 2016, 1; Ex. 2026, 1. HCM is its
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`investment manager, and Bass and Kirkpatrick are directors. Pet., 4; Ex. 2016, 1-2.
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`HOF has 18 investors. Ex. 2016, 4-5. No public filings disclose who these
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`investors are or their rights, the details of HOF’s interfaces with the other RPIs,
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`who its pertinent people are, or what they do.
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`HOM is a Cayman Islands hedge fund located in the Bass Headquarters. Ex.
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`2014, 1-2. It shares general partnership for Credes and HCMF with HCM. Pet., 3.
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`7
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`IPR2015-00990 and IPR2015-01093
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`Additionally, HOM is the general partner of Credes Offshore. Ex. 2014, 2-3.
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`HOM’s directors include Bass, Sung, Morgan, Keyes, and Kirkpatrick. Id.
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`HCM is a Texas hedge fund that manages pooled investment vehicle assets
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`and is located in the Bass Headquarters. Ex. 2008, 1. It is the general partner and
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`investment manager of Credes, HCMF, HSF, HOF, and four other entities. Pet., 3;
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`Ex. 2007, 11, 63, 74-75, 82. Two of these other four entities are Hayman Dialogo
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`LP (“HD”) and Japan Macro Opportunities Master Fund, L.P. (“JMOMF”).
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`7 Ex.
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`2007, 74-75, 82. The other two entities have not been identified, but of the entities
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`with which HCM has investment advisory agreements, 50% are foreign entities,
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`75% to 99% are pooled investment vehicles, and 11% to 25% are corporations or
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`other businesses. Id. at 10-11. No public filings disclose who these investors are or
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`their rights or the details of HCM’s other interfaces with the other RPIs.
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`7 HD and JMOMF are believed to operate out of the Bass Headquarters. HCM is
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`the general partner, manager, or director of HD. Ex. 2007, 74-75. HCM, HOM,
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`Bass, Keyes, Kirkpatrick, Morgan, and Sung are general partners, managers,
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`trustees, or directors of JMOMF. Ex. 2007, 82. JMOMF is a master fund to two
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`feeder funds – Japan Macro Opportunities Partners, L.P. (“JMOP”) and Japan
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`Macro Opportunities Offshore Partners, L.P. (“JMOOP”). Id. at 82-83. HCM is the
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`general partner of JMOMF, JMOP, and JMOOP. Id. at 83-84.
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`8
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`IPR2015-00990 and IPR2015-01093
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`The following persons, in addition to Bass, are control persons,
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`8 officers,
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`owners, and partners of HCM: Debra Lamoy (Chief Operating Officer, owner,
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`control person); Jeffrey Knowlton (Chief Financial Officer, owner, control person);
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`Kirkpatrick (General Counsel, owner, control person); Junea Lee (Chief
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`Compliance Officer, owner, control person); HI (General Partner, owner, control
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`person); Flat Calm Revocable Trust (Limited Partner, owner, control person); Bass
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`Descendants Trust No. 1 (Limited Partner, owner); and Bass Descendants Trust
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`No. 2 (Limited Partner, owner). Id. at 55-58. Typically, control persons, officers,
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`owners, and partners have some modicum of control and decision-making
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`authority over the finances and activities of an organization. None of these persons
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`have been named as an RPI.
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`C. Legal Principles
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` 1. Real Parties-in-Interest
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`The requirement to name all RPIs is a threshold issue for substantive review
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`of the challenges in a Petition.
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`Zoll Lifecor Corp. v. Philips Electronics North
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`America Corp. , IPR2013-00609, Paper 15, 9 (PTAB March 10, 2013). A
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`petitioner’s assertion of RPIs creates a rebuttable presumption in his favor. Zerto,
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`Inc. v. EMC Corp ., IPR2014-01254, Paper 35, 6-7 (PTAB March 3, 2015).
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`8 See Ex. 2004, Section B(2) for an explanation of the term “control person”.
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`9
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`IPR2015-00990 and IPR2015-01093
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`However, if “a patent owner provides sufficient rebuttal evidence that reasonably
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`brings into question the accuracy of a petitioner’s identification of real parties-in-
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`interest, the burden remains with the petitioner to establish that it has complied
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`with the statutory requirement to identify all the real parties-in-interest.” Id. at 7.
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`“‘Whether a party who is not a named participant in a given proceeding
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`nonetheless constitutes a ‘real party-in-interest’ . . . to that proceeding is a highly
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`fact-dependent question.’” Zoll, IPR2013-00609, Paper 15, 10 (PTAB March 20,
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`2014) (quoting Office Patent Trial Practice Guide (“OPTPG”), 77 Fed. Reg.
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`48,688, 48,759 (Aug. 14, 2012)). “‘[T]he spirit of that formulation as to IPR . . .
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`proceedings means that, at a general level, the ‘real party-in-interest’ is the party
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`that desires review of the patent. Thus, the ‘real party-in-interest’ may be the
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`petitioner itself, and/or it may be the real party or parties at whose behest the
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`petition has been filed.’”
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`Id. (quoting 77 Fed. Reg. at 48,759) (emphasis in
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`original).
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`Failure to name a RPI can be established from extrinsic evidence submitted
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`by the patent owner. In re Guan, Inter Partes Reexamination Proceeding, Control
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`No. 95/001,045, Decision Vacating Filing Date at 7 (BPAI Aug. 25, 2008).
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`The OPTPG relies upon
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`Taylor v. Sturgell
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`, 553 U.S. 880 (2008), in
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`explaining the “factors relevant to the question of whether a non-party may be
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`recognized as a ‘real party-in-interest’ . . . .’” 77 Fed. Reg. at 48759. The
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`Taylor
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`10
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`IPR2015-00990 and IPR2015-01093
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`court held that a non-party may be bound by the determination of issues in another
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`action: (1) by agreement; (2) based on a pre-existing substantive legal relationship
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`between the non-party and the party to a judgment; (3) because the non-party was
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`adequately represented by someone with the same interests who was a party; (4) if
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`the non-party assumed control over the case in which judgment was rendered; (5)
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`if the non-party is trying to avoid the earlier judgment’s preclusive force by
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`relitigating through a proxy; and (6) if a special statutory scheme expressly
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`forecloses successive litigation by non-litigants. Taylor, 553 U.S. at 893-95.
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`The OPTPG also explains that when a party funds and directly controls an
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`IPR, she is likely to be a RPI. 77 Fed. Reg. at 48760. The PTAB has construed
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`“control” to include actual control or the opportunity to control, both of which are
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`evidenced by the existence of a financially controlling interest in the petitioner, the
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`non-party’s relationship with the petitioner, the non-party’s relationship to the
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`petition itself, and the nature of the entity filing the petition. Zoll, IPR2013-00609,
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`Paper 15, 10 (citing 77 Fed. Reg. at 48,760). More importantly, in Zoll, the PTAB
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`found the aligned interests of the non-party with the party to be most important. Id.
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`at 11. Furthermore, this Board’s predecessor held that a requestor in an inter partes
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`reexamination cannot act as a shill to shield the identities of the actual RPIs.
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`Guan, Decision Vacating Filing Date at 7; see also RPX Corp. v. Virnet, IPR2014-
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`00171, Paper 57 (PTAB July 14, 2014).
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`11
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`IPR2015-00990 and IPR2015-01093
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`2. Discovery in
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`Inter Partes Proceedings
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`Certain discovery is available in IPRs when necessary in the interest of
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`justice. 35 U.S.C. § 316(a)(5); 37 C.F.R. §§ 42.51(b)(2). Discovery should be
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`granted if: (1) the requesting party is in possession of evidence tending to show
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`beyond speculation that something useful will be uncovered; (2) the discovery does
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`not request litigation positions and underlying bases; (3) the requested information
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`cannot be generated without discovery; (4) the discovery request instructions are
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`easily understandable; and (5) the discovery requests are not overly burdensome to
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`answer. Garmin, IPR2012-00001, Paper 26, 6-7. “‘Useful’ in the context of the
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`first factor means ‘favorable in substantive value to a contention of the party
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`moving for discovery,’ not just ‘relevant’ or ‘admissible.’”
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`John’s Lone Star
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`Distribution, Inc. v. Thermolife Int’l, LLC , IPR2014-01201, Paper 29, 4 (PTAB
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`May 13, 2015) (quoting Garmin, IPR2012-00001, Paper 26, 7).
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`D. NPS’s Requests Meet the Garmin Requirements
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`NPS’s document requests are simple, precise, and targeted to discover
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`information about those who are indicated by public information to be funding or
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`directing this proceeding. The requests are for documents and things that identify
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`by name, company documents, investments, authorities and duties, contracts and
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`agreements, income and revenue, and advertising and solicitation the Named
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`Funders and those persons who provide funds to, own, or mange any of the Named
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`12
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`IPR2015-00990 and IPR2015-01093
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`Funders (collectively, the “Unnamed Funders”). Intimate interrelationships among
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`the Named and Unnamed Funders have been shown through public information.
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`Many have common addresses, partners, officers, managers, directors, trustees, and
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`investors, as explained above and shown in Ex. 2005.
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`That there may be many persons identified in response to these requests is of
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`Petitioner’s and the named RPIs’ own doing. They designed a spider’s web to hide
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`identities for reasons of their own. They sought investments specifically to fund
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`IPRs. They concocted and are participating, with unnamed others, in a scheme to
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`profit from IPRs. They cannot plead now that because they involved a lot of
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`persons in their scheme and set up many different entities to hide their identities
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`and money, that sheer numbers should protect them from discovery and the
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`statutory requirements of an IPR. That would be rewarding their obfuscation.
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`The precise types of documents sought are spelled out with particularity in
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`different requests as follows: (Request for Production (“RFP”) No. 1) those
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`identifying the persons who appear from public information to be controlling or
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`funding the Named Funders (i.e., the Unnamed Funders); (RFP No. 2) the
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`governance documents of the Named and Unnamed Funders; (RFP No. 3) those
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`providing the duties, responsibilities, and authority of a Named or Unnamed
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`Funder specifically in any Named or Unnamed Funder; (RFP No. 4) the
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`investments of the Named or Unnamed Funders in any Named or Unnamed
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`13
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`IPR2015-00990 and IPR2015-01093
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`Funder; (RFP No. 5) the income or revenue of persons from any Named or
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`Unnamed Funder; (RFP No. 6) agreements by Named or Unnamed Funders
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`involving control of a Named or Unnamed Funder; and (RFP No. 7) offerings,
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`private placement memoranda, solicitations, and presentations to prospective
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`investors by any Named or Unnamed Funder since January 1, 2014. See Ex. 2001.
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`The evidence presented herein shows beyond speculation, in fact, that
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`something will be uncovered that is favorable in substantive value to the
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`contention of NPS that the Petition fails to name all RPIs. The evidence shows that
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`the money trail goes far beyond what is stated in the Petition. Indeed, it shows that
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`funds are collected from both Named and Unnamed RPIs and are intermingled or
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`transferred from one RPI to another for use in this and other IPRs. The same is true
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`with the issue of control. NPS has shown that the headquarters and those in control
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`overlap among the Named and Unnamed RPIs. Thus, the requested discovery will
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`certainly uncover something favorable in substantive value to the contention that
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`the Petition fails to name all RPIs.
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`The discovery does not request litigation positions and underlying bases.
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`NPS cannot obtain the information sought absent discovery. Bass et al. have
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`formed a nested series of private funds operated from a single headquarters with
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`common management, and investors have secretly invested in these private funds
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`to finance IPRs to reap huge profits by shorting the stocks of patent owners.
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`14
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`IPR2015-00990 and IPR2015-01093
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`The discovery request instructions are easily understandable.
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`Finally, the discovery requests are not overly burdensome to answer. They
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`seek information that is essential to every entity, is kept in the regular course of
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`business, and should be readily available. Petitioners cannot allege that the
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`discovery is burdensome because of the number of persons involved. They created
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`the structure at issue and deliberately intermingled funds, management, and
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`control. They cannot now complain that it is too complicated and broad for
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`discovery. It is precisely for that reason that discovery is necessary.
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`III. CONCLUSION
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`For the foregoing reasons, the Board should order Petitioner to respond to
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`the Request for Production of Documents and Things and Interrogatories attached
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`as Ex. 2001 and Ex. 2002 and to produce a witness to testify on the topics attached
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`as Ex. 2003.
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`Respectfully submitted,
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`Dated June 3, 2015 /Joseph R. Robinson/
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` Joseph R. Robinson, PTO Reg. No. 33,448
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`
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` Heather M. Ettinger, PTO Reg. No. 51,658
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` Dustin B. Weeks, PTO Reg. No. 67,466
`Attorneys for Patent Owner
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`15
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`IPR2015-00990 and IPR2015-01093
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing Patent
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`Owner’s Motion for Additional Discovery, Patent Owner’s Exhibit List, and
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`associated exhibits were served via electronic mail on June 3, 2015 on attorney for
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`Petitioner:
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`Jeffrey D. Blake, Esq.
`jblake@merchantgould.com
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` Respectfully submitted,
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`Dated: June 3, 2015 /Dustin B. Weeks/
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` Dustin B. Weeks, PTO Reg. No. 67,466
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