Emboldened by the Patent Trial and Appeals Board’s rejection of Celgene Corp.’s (CELG) sanctions motion for allegedly abusing the IPR process under the America Invents Act, IP Navigation Group founder Erich Spangenberg has now launched a public crusade against what he calls “evergreening" and what he says big pharma calls “lifecycle management.”

Spangenberg on his blog on Friday said so-called “evergreening” allows big pharma to extend 10- to 20-year monopolies granted through the patent process for another 10 plus years simply by filing patents for innovations that he says aren’t really innovative.

“By law, inventions are supposed to be ‘novel’ – new – and ‘not obvious to one skilled in the art’ in order to qualify for a patent,” Spangenberg said. “For some reason, the same ‘novelty’ and ‘obviousness’ standards that apply to other fields of endeavor don’t seem to apply to drug patents.

Pharmaceutical companies “are getting patents on highly questionable ‘innovations.’ It is not so much that they are ‘incremental’ (which the patent law promotes) as they are simply not patentable for various reasons.

Such “bogus ‘new’ patents can extend a drug’s patent protection by a decade or more – allowing drug manufacturers to charge legally sanctioned monopoly prices far longer than deserved.”

Spangenberg said the Patent and Trademark Office has granted patents where the only “novelty” is: siliconized rubber bottle stoppers; micro tablets (rather than the full-size versions or granulates); or using computers to manage drug distribution.

To combat so-called ever greening, Spangenberg said he will make publicly available in as early as the next week “substantially final draft versions of IPR petitions for pharma patents” that he believes are invalid.

“My 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,” he said. “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.

Spangenberg said anybody could file the petition: “a law school student group, a charitable organization, a health insurance company, a consumer protection group, or a government entity sick of seeing and outrageous example of corporate welfare that results in harm to patients and taxpayers.”

“To help whoever takes on the task, I’ve found a number of law firms and experts that have offered fee arrangements that are a fraction of normal market pricing. If you email info@nxn.com, this information along with additional materials you will need will be provided. If there are any law firms or experts who are interested in helping out in this effort, happy to make introductions.

“Unfortunately, I can’t pay the legal or expert fees or that would make me part of the IPR as a ‘real party in interest,’ and then we’d be back to dealing with the lack of altruism rubbish from these corporate welfare-benefiting thieves that engage in the most outrageous activities.”
The altruism rubbish Spangenberg is referring to is the allegation from Celgene and other targets of the Coalition for Affordable Drugs’ IPR campaigns that he and Bass are trying to invalidate patents to make money rather than to make drugs more affordable for all.

To be sure, PTAB rejected the profit seeking charge, noting that drug companies are also motivated by profits, as well as the argument that the coalition was abusing the IPR process, when it denied Celgene’s motion for sanctions.

In an email, Spangenberg told The Patent Investor that Big Pharma is going to “hate” his evergreening crusade.

Asked whether PTAB’s denial of Celgene’s motion for sanctions and all the pending IPRs against other pharma companies could make them move mountains to get a special carve out from the AIA to effectively end his and J. Kyle Bass’s crusade, Spangenberg said: “Pharma has over 1,200 registered lobbyists and doles out over $240 million a year to both sides of aisle.  Of course we do not do not underestimate them.  

“The politician that sponsors and votes for that bill better have a job lined up with Pharma because their constituents will be well informed and with no votes from seniors they will need to have a new job lined up.”

Officials from the Biotechnology Industry Organization couldn’t be reached immediately for comment.

Officials from Celgene couldn't be reached immediately for comment.

Jeff MacDonald, a spokesman for Acorda Therapeutics (ACOR) declined comment.

"Erich is creative and this latest outreach shows it," said David Pratt, a managing director at M-CAM, an IP asset management advisory firm in Charlottesville, Virginia, in an email. "The statute has broad language on who can file and Erich is re-emphasizing that aspect of the process. Denial of institution of some of the earlier petitions was on the grounds of inadequate showings of prior art. So this evolution is interesting in that I think Erich hopes that additional art may surface amongst a broader group."

—To reach the reporter responsible for this story please contact Dan Lonkevich at 707 318-7899 or at dan@thepatentinvestor.com