`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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`CORRECTED PATENT OWNER’S BRIEF IN RESPONSE TO THE
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`BOARD’S REQUEST FOR ADDITIONAL BRIEFING PURSUANT TO 37
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`C.F.R. § 42.20(d)
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`
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`1 Per the Board’s Order authorizing this brief (see, e.g., IPR2015-00990, Paper 20,
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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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`Table of Contents
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`I. INTRODUCTION…………………………………………………………..1
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`II. ARGUMENT……………………………………………………………….4
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`A. The Bass Group’s Market Manipulation and Misrepresentations Are
`Improper Purposes …………………………………………………...5
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`B. PTAB Issue – Congressional Intent…………………………………7
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`1. IPRs Were Intended as Expeditious, Cost-Effective Litigation
`Alternatives, Not Stock Manipulation Tools ………………..7
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`2. The Statute Requires the PTO to Ensure that IPRs Are not Used
`for Improper Purposes or to Harass……………………........9
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`C. A Petitioner Cannot Have Standing if Its Purposes Are Improper..10
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`D. Consideration of Business Objectives/Intent ……………………....11
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`E. Social Cost/Benefit of Sanctions v. Merit Consideration…………12
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`III. CONCLUSION…………………………………………………………….15
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`I. INTRODUCTION
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`
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`This memorandum is submitted pursuant to the Board’s September 1, 2015,
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`Order. Paper 20. Respondent requests: (i) dismissal of the “Bass Group” Petitions
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`for abuse of process and improper purpose; and (ii) an award of its attorneys’ fees,
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`and an order barring the Bass Group from making any further filings.
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`Congress sought, through the America Invents Act (“AIA”), to create “a[n]
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`expeditious and less costly alternative to [patent] litigation,” 153 Congr. Rec § 774
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`(Apr. 18, 2007), by eliminating “litigation abuses,” 157 Congr. Rec § 5319 (Sept.
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`6, 2011), particularly those perpetrated by companies “who don’t produce any
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`products” and instead exist for the sole purpose of attempting to reap financial gain
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`through no means other than leveraging patent litigation. 153 Congr. Rec. § S5319
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`(Sept. 6, 2011). While Congress may not have foreseen the Bass Group’s specific
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`gambit, it is no less offensive to the AIA’s fundamental purpose. If the Petitions
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`are not dismissed with sanctions, the Bass Group (and other copy-cat hedge funds)
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`will further exploit IPRs for illegitimate profiteering. The Petitions subvert IPRs,
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`make the PTO an involuntary party to stock manipulation, and thwart the AIA.
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`They cannot be sustained.
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`Since January 2015, the Bass Group has manipulated stock markets through
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`IPRs. It has requested nearly 20 IPRs, targeting patents for at least 10 drugs from
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`at least 9 different companies – all publicly traded. Its scheme is as simple as it is
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`
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`1
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`
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`manipulative: establish short positions, file petitions to drop stock prices, make
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`misleading statements in support, and then reap financial gains.
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`This is a gold-mine for hedge funds: they can control market-moving
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`information (with the illusion of legitimacy through PTO proceedings), cause a
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`drop in share price, and even
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`control its timing . The outcome of the IPR
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`proceeding is irrelevant (and the IPR cannot have a proper purpose) because the
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`Bass Group wins profits simply by filing (regardless of merit) and misrepresenting
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`IPRs (and refiling them when they fail). The Bass Group has tried to appear
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`altruistic by pointing to purported ancillary benefits – shortening patent
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`exclusivity, hastening generic entry, and “lower[ing] drug prices for everyone.”
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`Ex. 2022. However, since these statements are materially misleading, they
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`compound the market manipulation.
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`For example, U.S. Patent No. 7,056,886, challenged here, expires September
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`18, 2022, and covers formulations and methods of using and manufacturing
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`GATTEX®. However, another Orange Book-listed GATTEX patent, U.S. Patent
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`No. 7,847,061, expires over three years later, and is not challenged. Also, the
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`Petitions do not challenge the ‘886 patent’s manufacturing claims, which will still
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`be enforceable no matter what. 2 Therefore, contrary to the Bass Group’s public
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`2 The first Petition, filed on April 1, 2015, did not challenge ‘886 claims 1-45.
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`These were not challenged until three weeks later. The Petitions cannot shorten
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`
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`2
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`
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`statements, the IPRs cannot shorten GATTEX patent exclusivity.
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`3 Nevertheless,
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`the day after the first Petition, the share price of Shire, Patent Owner’s parent, fell
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`2.5% (the equivalent of a $2 billion loss in enterprise value). Similarly, Acorda’s
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`share price fell about 10% after an IPR challenge. See Ex. 2019, 2; Ex. 2020, 1.
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`Although that petition was dismissed (IPR2015-00720, Paper 15), the Bass Group
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`later filed additional petitions against the same and other patents.
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`See IPR2015-
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`01857, -01858. Serial and repeated IPR petitions benefit short or long term
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`shorting positions. The Bass Group’s serial (and repeat) IPR petitions only
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`amplify the market manipulation.
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`The Bass Group’s actions constitute an abuse of process and an improper
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`use of IPRs that strike at the core of the AIA’s goals. Its program of harassment,
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`market manipulation, and subversion of PTO proceedings for illicit gains, is a
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`misuse of IPRs; it offends due process and is sanctionable. It is essential that the
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`
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`GATTEX patent exclusivity, because of other ‘886 claims and other Orange Book
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`GATTEX patents.
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`3 Patent term extension (“PTE”) applications are pending for the ‘886 patent and
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`U.S. Patent No. 5,789,379. Possible PTE does not affect the materiality or
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`misleading nature of the Bass Group’s statements that the IPRs will shorten patent
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`exclusivity.
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`
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`3
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`
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`Board exercise its powers under 35 U.S.C. § 316(a) and 37 C.F.R. § 42.12.
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`Sanctions, such as dismissal for abuse of process or improper purpose coupled with
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`attorneys’ fees and an order prohibiting subsequent filings, will prevent the
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`hijacking of IPRs for manipulative profiteering, will shield patent owners and
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`shareholders from unnecessary harm, and will deter repeated vexatious filings.
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`II. ARGUMENT
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`The Board has authority to “impose a sanction against a party for
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`misconduct,” including for “abuse of process” or “any other improper use of the
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`proceeding, including actions that harass.” 37 C.F.R. § 42.12. The PTO has yet to
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`define the precise contours of “abuse of process” and “improper use”, but these
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`concepts are well-understood.4 Abuse or improper use of a process or proceeding,
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`occurs when they are used for an ulterior purpose for which they were not designed
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`or intended.
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`The Bass Group’s IPRs, coupled with a deceptive marketing plan to
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`manipulate stock markets, are abuse of process and/or improper use in the sense
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`that they use an agency “process, procedure or rule to achieve a result which that
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`4 “Abuse of process” does not have a special statutory meaning, but, the PTO can
`Sanctions for improper purpose also remain appropriate, as discussed herein.
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`say what constitutes “abuse of process” in an agency setting, as did the FCC. See In
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`re Applications of High Plains Wireless, L.P.
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`, 15 F.C.C. Rcd 4620, 4623 (2000).
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`
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`4
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`
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`process, procedure or rule was not designed or intended to achieve.”
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`In re
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`Applications of High Plains Wireless, L.P.
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`, 15 F.C.C. Rcd 4620, 4623 (2000).
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`5
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`Determining that IPR activities are abusive or improper is within the PTO’s
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`powers. Furthermore, sanctions for “improper purpose” may be a patent owner’s
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`only recourse.
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`A. The Bass Group’s Market Manipulation and Misrepresentations
`Are Improper Purposes
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`The Bass Group has made no secret that the Petitions are part of a “short
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`activist strategy.” See IPR2015-00990, Paper 19 at 33. This is short-hand for
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`taking short positions on stock and then using the IPR process and
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`misrepresentations to drive down stock prices. The “beauty” of the “short activist
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`strategy” for investors is that it eliminates significant short-selling market risk.
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`The Bass Group knows that an IPR can cause a stock’s price to fall. It controls the
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`timing of the IPR filing and publicizes a loss of patent exclusivity, thereby
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`controlling the timing of the stock drop. Therefore, the IPR petition is simply a
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`5 Also, recognizing the scope of agency due process, as the FCC did, would not be
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`post hoc application of a new rule. There is no due process violation against the
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`Bass Group, as argued in Coalition IV LLC v. Pharmacyclics.
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` IPR2015-01076,
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`abusive IPRs are not a due process right.
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`Paper 23 at 12. Sanctioning improper activity is not arbitrary or capricious, and
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`
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`5
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`
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`means for market manipulation.
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`Moreover, the Bass Group has made statements about its IPRs lowering drug
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`prices, hastening generic competition, and shortening drug patent exclusivity (as
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`for GATTEX) that were wrong and misleading, because other patent exclusivity
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`remains in place. Ex. 2021, 2022.
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`Such misrepresentations to support stock manipulation are improper. The
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`Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and U.S. S.E.C. Rule 10b-5
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`(17 C.F.R. § 240.10b-5), prohibit any act or omission resulting in manipulation,
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`fraud, or deceit in connection with security trades.6 Misrepresentations defraud the
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`entire market and, consequently, affect the stock price. See Basic v. Levinson, 485
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`U.S. 224, 241-42, 244, 247, n. 24 (1988). The Bass Group has materially
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`misrepresented that its IPRs will shorten the GATTEX patent exclusivity and will
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`hasten generics when they actually will not. It did not tell the public material facts
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`– that unchallenged patents and unchallenged ‘886 patent claims would still be
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`enforceable, and that it must win both IPRs to have the ‘886 patent delisted from
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`the Orange Book (so a generic could avoid a paragraph IV certification for this
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`
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`6 Manipulation particularly is intentional conduct, including spreading false or
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`misleading information about a company, designed to deceive investors by
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`controlling or artificially affecting the market for a security.
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`
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`See
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`http://www.sec.gov/answers/tmanipul.htm.
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`
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`6
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`
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`patent). Bass has commented publicly that IPRs are an essential part of his “short
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`activist strategy”, has solicited investors, and will receive commissions on shorting
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`profits. See IPR2015-00990, Paper 19 at 33. It is undeniable that Bass’ material
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`misstatements caused harm – Shire shareholders traded and lost money.
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` The evidence establishes by a preponderance and reasonable likelihood, and
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`even clearly and convincingly that the Bass Group is using IPRs improperly. It is
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`undeniable. This abuse of IPR proceedings diverts them to an improper purpose
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`and warrants dismissal of the Petitions, attorneys’ fees, and prohibiting further
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`filings.
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`B. PTAB Issue – Congressional Intent
`1. IPRs Were Intended as Expeditious, Cost-Effective
`Litigation Alternatives, Not Stock Manipulation Tools
`
` Congress recognized that the patent laws needed “to change to
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`accommodate … the litigation practices in the patent realm.” AIA, H. Rep. No.
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`112-98 Pat 1 (June 1, 2011), p. 38-40. 112 th Cong., 1st Sess. at 38-39. The House
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`focused on “providing a more efficient system for challenging patents” and for
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`“reducing unwarranted litigation costs.” Id. at 39-40. A primary AIA purpose was
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`to “limit unnecessary and counterproductive litigation costs.” Id. at 40. The PTO
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`stated that “[IPR] proceedings will serve to minimize costs and increase certainty
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`by offering efficient and timely alternatives to litigation as a means of reviewing
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`questions of patent validity.” Id. at 87. The Senate concurred. See Cong. Record
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`
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`7
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`
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`– Sen. Feb. 28, 2011, p. S952 (“These new procedures would also provide faster,
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`less costly alternatives to civil litigation to challenge patents.”). The House
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`Commission explained that:
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`H.R. 1249 also includes provisions to ensure that patent litigation
`benefits those with valid claims, but not those opportunists who seek
`to abuse the litigation process. Many innovative companies, including
`those in the technology and other sectors, have been forced to defend
`against patent infringement lawsuits of questionable legitimacy.
`* * * * *
`This legislation retains an inter partes re-exam process, which allows
`innovators to challenge the validity of a patent when they are sued for
`patent infringement.
`
`AIA Hrg. before Subcomm. on I.P., Comp., and Internet of the Comm. on the Jud.
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`H. Rep. 112th Cong. 1 st Sess. on H.R. 1249 (Mar. 30, 2011) S.N. 112-35, p. 2. A
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`former PTO General Counsel subsequently stated “[w]hen we developed [IPRs]
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`we never thought people would use them this way, in an effort to move stock or as
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`an investment vehicle.” IPR2015-01092, Ex. 2052 at 2.
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`The Petitions offend the AIA’s fundamental purposes. The Bass Group does
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`not otherwise have standing to challenge the GATTEX patents in a litigation. The
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`Bass Group is a collection of hedge funds and their investors. It does not
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`manufacture, use, offer, sell, or import any infringing products and does not induce
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`or contribute to infringement. It is not using the IPRs as a litigation alternative;
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`nor is there a legitimate “patent quality” purpose. It is not using the patent system
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`to create or innovate inventions, either. See U.S. Const. art. 1. § 8. Instead, it is
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`
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`8
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`
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`using misrepresentations about IPRs, filed as a pretext, to game the stock market.
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`Congress did not intend IPRs to be instruments of market manipulation and
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`misrepresentation.
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`2. The Statute Requires the PTO to Ensure that IPRs Are not
`Used for Improper Purposes or to Harass
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`The PTO was given expanded authority to enact regulations to ensure IPRs
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`accomplish their intended goals. See 111th Cong., 1st Sess. Sen. Rep. 111-18 (May
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`12, 2009), p. 18 (“[T] he changes are not to be used as tools for harassment or a
`
`means to prevent market entry …. Doing so would frustrate the purpose [of]
`
`providing for quick and cost effective alternatives to litigations. Further, such
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`activity would divert resources from the research and development of inventions.
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`As such, the Committee intends for the USPTO to address potential abuses and
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`current inefficiencies under its expanded procedural authority.”); Cal. No. 563 –
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`110th Cong. 2d Sess., Sen. Rpt. 110-259, at 23 (The PTO must “ensure that
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`regulations forbidding and penalizing harassment are enacted.”); AIA, Hrg. before
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`Subcomm. on I.P., Comp., and Internet of the Comm. on the Jud. H. Rep. 112th
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`Cong. 1st Sess. on H.R. 1249 (March 30, 2011) S.N. 112-35, p. 2.
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`Accordingly, Congress made it incumbent upon the PTO to carry out the
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`legislative intent through powers granted in the AIA. See 35 U.S.C. § 316(a)(4)
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`(“The Director shall prescribe regulations … establishing and governing inter
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`partes review …”; 35 U.S.C. § 314(d) (“The determination by the Director
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`
`
`9
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`
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`whether to institute an inter partes review under this section shall be final and
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`nonappealable.”). The PTO’s actions should reflect positively on “the economy,
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`the integrity of the patent system, the efficient administration of the Office, and the
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`ability of the Office to timely complete proceedings ….” 35 U.S.C. § 316(b). The
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`PTO has authority to interpret and apply its own rules to give effect to their
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`underlying purposes. Microsoft Corp. v. Proxyconn, Inc ., 789 F.3d 1292, 1307-08
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`(Fed. Cir. 2015) (PTAB’s interpretation of IPR regulations is consistent with
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`Congressional intent).
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`C. A Petitioner Cannot Have Standing if Its Purposes Are Improper
`
`
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`IPR standing is explained by two provisions. First, 35 U.S.C. § 311(a)
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`provides that “… a person who is not the owner of a patent may file with the
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`Office a petition to institute an inter partes review ….” Section 316(a)(6) then
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`adds the important qualifier that no person may file an IPR petition for improper
`
`purposes. Someone who brings an IPR for an improper purpose cannot have
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`standing. 35 U.S.C. § 316(a)(6) (“The Director shall prescribe regulations …
`
`prescribing sanctions for … any other improper use ….”).
`
` Accordingly, the Bass
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`Group, because it has used IPRs to mislead the public and to manipulate stock,
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`should not have IPR standing. Moreover, the merits (if any) of the IPR are
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`irrelevant, because an improper purpose cannot be cured by arguing a potentially
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`proper one, i.e., any IPR might be said to touch upon patent quality.
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`
`
`10
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`
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` Dismissal here would not violate the
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`Noerr Pennington doctrine. See, e.g.,
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`Pharmacyclics, Inc., IPR2015-01076, Paper 23 at 7. The Bass Group attacked that
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`abuse of process motion by arguing that short selling is not improper per se, and,
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`therefore, the Noerr Pennington sham exception should not apply.
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`Id. at 8-9.
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`While short selling may be lawful, co-opting IPRs and misrepresenting patent
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`exclusivity intentionally to move the market in support of a short sale is not. The
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`exception, therefore, does apply. Furthermore, it is an improper purpose to use
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`IPRs and to make misleading comments about them as a market manipulation tool,
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`whether or not short selling by itself is an acceptable hedge fund activity.
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`D. Consideration of Business Objectives/Intent
`
`
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`Misrepresentation typically involves intent. Here, Congress instructed the
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`PTO to forbid and penalize harassment. See Cal. No. 563 – 110th Cong. 2d Sess.,
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`Sen. Rpt. 110-259, p. 23 (“The Director is admonished … to ensure that
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`regulations forbidding and penalizing harassment are enacted.”); 111th Cong., 1 st
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`Sess. Sen. Rpt. 111-18 May 12, 2009, p. 18 (“[T]he changes are not to be used as
`
`tools for harassment or a means to prevent market entry through repeated litigation
`
`and administrative attacks on the validity of a patent. Doing so would frustrate the
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`purpose of the section as providing for quick and cost effective alternatives to
`
`litigations.” “[T]he Committee intends for the USPTO to address potential abuses
`
`and current inefficiencies under its expanded procedural authority.”)
`
`
`
`11
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`
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`Harassment is typically an intentional tort. See, e.g., Womack v. Eldridge,
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`215 Va. 338, 210 S.E.2d 145 (1974) (intentional infliction of emotional distress).
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`Similarly, criminal harassment typically requires intent. See, e.g., Code of Virginia
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`18.2-60.3 (stalking). Since intent is an element of harassment and harassment is an
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`improper purpose, the intent or business objective of the Petitioner should be
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`considered.
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`The Petitioner’s intent or objective should also be considered because, as the
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`PTO noted, “[i]t is important that [these proceedings] be designed to prevent delay
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`and abusive challenges, but still enable valid challenges on meritorious grounds.”
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`112th Cong., 1st Sess. H. Rep. 112-98 Part 1 (June 1, 2011), p. 87; see also id. at 48.
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`In order to “prevent [] abusive challenges” and delays caused by repetitive filings
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`and resulting undue docket expansion, the Board should consider extraneous
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`evidence, including a petitioner’s business objective or intent in bringing the IPR.
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`Here, the Petitioner has made public statements about its business objectives or
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`intent. The Bass Group aims to manipulate a targeted stock, it files and
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`misrepresents IPRs to do so, and it cloaks its activities with humanitarian
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`camouflage. These abuses should be sanctioned.
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`E. Social Cost/Benefit of Sanctions v. Merit Consideration
`The statute requires the Director to “prescribe regulations … requiring that
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`the final determination in an inter partes review be issued not later than 1 year after
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`
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`12
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`
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`the date on which the Director notices the institution of a review ….” 35 U.S.C. §
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`316(a)(11). Expeditious IPR disposition is essential to the AIA. The sanctions
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`here are a threshold issue that will be more quickly and easily dispositive than
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`time-consuming merit resolution of IPRs that are admittedly pretexts for a move on
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`the stock markets.
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`Sanctions deter or warn future petitioners who contemplate improper uses,
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`they reform improper behavior, and they educate. For example, district courts use
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`Rule 11 to consider whether a pleading is presented for an improper purpose. See
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`Jimenez v. Madison Area Tech. Coll.
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`, 321 F.3d 652, 656 (7 th Cir. 2003). The
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`Fourth Circuit elaborated that “[i]f a complaint is not filed to vindicate rights in
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`court, its purpose must be improper.” In re Kunsler , 914 F.2d 505, 518 (4 th Cir.
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`1990). If a complaint is filed to vindicate rights in court as well as for some other
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`potentially improper purpose, “[t]he purpose to vindicate rights in court must be
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`central and sincere.” Id. “Circumstantial facts surrounding the filing may also be
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`considered as evidence of the signer’s purpose.” Id. at 519.
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`The Rule 11 comments explain: “[t]he word ‘sanctions’ … stresses a
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`deterrent orientation.” Fed R. Civ. P. 11, Notes of Advisory Comm. on 1983
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`Amendments. The Rule permits a court “to award expenses, including attorney's
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`fees, to a litigant whose opponent acts in bad faith in instituting or conducting
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`litigation.” Id. Furthermore, “deterrence may be ineffective unless the sanction not
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`
`
`13
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`
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`only requires the person violating the rule to make a monetary payment, but also
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`directs that some or all of this payment be made to those injured by the violation.”
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`Id. These reasons for, and social benefits of, litigation sanctions apply equally to
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`IPRs.
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` Additionally, parties to PTO proceedings also owe duties of candor and
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`good faith. 37 C.F.R. § 42.11; Cargill, Inc. v. Canbra Foods, Ltd., 476 F.3d 1359,
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`1368 (Fed. Cir. 2007) (“self-serving manipulation of highly material evidence can
`
`hardly be called ‘good faith,’” re analogous Rule 56) (overruled on other grounds).
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`Here, the Bass Group failed to disclose its improper purposes.
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`Finally, the Board has discretion over which petitions it will grant and can
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`deny petitions that hinder “the ability of the Office to timely complete [IPR]
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`proceedings.” 35 U.S.C. §§ 314(a), 316(b). The Bass Group has no legal right
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`under the IPR statutes. See Consumer Watchdog v. WARF , 753 F.3d 1258, 1262
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`(Fed. Cir. 2014) (Plaintiff had no connection to the challenged patent, so “the
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`Board’s denial . . . did not invade any legal right conferred.”).
`
`
`
`14
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`
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`III. CONCLUSION
`
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`The Petitions should be dismissed, attorneys’ fees should be awarded to
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`Patent Owner, and subsequent petition filings should be prohibited for the
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`foregoing reasons.7
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` Respectfully submitted,
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`Dated September 14, 2015 /s/ Joseph R. Robinson
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`
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`
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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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`
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` Dustin B. Weeks, PTO Reg. No. 67,466
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`
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`7Patent Owner certifies that this corrected brief was filed to correct a single
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`typographical error, specifically, the deletion of the word “not” from the fourth
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`sentence on page 11 of “Patent Owner’s Brief in Response to the Board’s Request
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`for Additional Briefing Pursuant to 37 CFR 42.20(d)” submitted September 10,
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`2015.
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`
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`15
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`
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing Corrected
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`Patent Owner’s Brief In Response to the Board’s Request For Additional Briefing
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`Pursuant to 37 C.F.R. § 42.20(D was served via electronic mail on September 14,
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`2015 on attorney for Petitioner:
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`Jeffrey D. Blake, Esq.
`jblake@merchantgould.com
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`
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` Respectfully submitted,
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`
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`
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`Dated: September 14, 2015 /s/ Dustin B. Weeks
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`
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` Dustin B. Weeks, PTO Reg. No. 67,466
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`