Gnosis Attacks Four Merck Folate Composition Patents, Week of January 21, 2013

Scott Daniels | January 28, 2013

The Italian drug company Gnosis S.p.A. has counter-attacked Merck and its business partners last week, by requesting inter partes review of U.S. Patent Nos. 5,997,915, 6,011,040, 6,673,381 and 7,172,778 (see inter partes review Request Nos. (1)-(4)).  The patents claim various folate and L-methylfolate compositions and methods of use, for treating vascular disease and neural tube deficiencies.  Merck, South Alabama Medical Science Foundation, and Pamlab, which collectively own and license the four patents, have sued Gnosis for infringement, both in the U.S. International Trade Commission and the Eastern District of Texas.  We will watch for interactions between the PTO’s reviews and the ITC’s investigation, since the two proceedings are likely to be completed at approximately the same time.

Using a strategy that will interest practitioners, LaRose Industries has filed two separate inter partes review requests, each based on a different interpretation of the claims (see inter partes review Request No. (5)).  The two sets of claim interpretation are intended to correspond to the patent owner’s claim construction as presented in the infringement litigation, and during prosecution of the ‘558 patent. Petitioner alleges that the patent owner has offered two contradictory sets of claim construction.

The following inter partes review requests were filed:

(1)         IPR2013-00116 (electronically filed) – U.S. Patent No. 5,997,915 entitled COMPOSITIONS FOR HUMAN AND ANIMAL CONSUMPTION CONTAINING REDUCED FOLATES AND METHODS FOR MAKING AND USING SAME and owned by South Alabama Medical Science Foundation.  Filed January 24, 2013 by Gnosis S.p.A.  The ‘915 patent is currently the subject of a litigation styled Merck & Cie, et al. v. Macoven Pharmaceuticals, et al. (Case No. 6:12-cv-27-LED (E.D. Tex.)); In the Matter of Reduced Folate Nutraceutical Products and L-Methylfolate Raw Ingredients Used Therein (Inv. No. 337-TA-857) (USITC)).

(2)         IPR2013-00117 (electronically filed) – U.S. Patent No. 6,011,040 entitled USE OF TETRAHYDROFOLATES IN NATURAL STEREOISOMERIC FORM FOR THE PRODUCTION OF A PHARMACEUTICAL PREPARATION SUITABLE FOR INFLUENCING THE HOMOCYSTEINE LEVEL, PARTICULARLY FOR ASSISTING THE REMETHYLATION OF HOMOCYSTEINE and owned by Merck & Cie.  Filed January 24, 2013 by Gnosis S.p.A.  The ‘040 patent is currently the subject of a litigation styled Merck & Cie, et al. v. Macoven Pharmaceuticals, et al. (Case No. 6:12-cv-27-LED (E.D. Tex.)); In the Matter of Reduced Folate Nutraceutical Products and L-Methylfolate Raw Ingredients Used Therein (Inv. No. 337-TA-857) (USITC)).

(3)         IPR2013-00118 (electronically filed) – U.S. Patent No. 6,673,381 entitled FOOD AND VITAMIN PREPARATIONS CONTAINING THE NATURAL ISOMER OF REDUCED FOLATES and owned by South Alabama Medical Science Foundation.  Filed January 24, 2013 by Gnosis S.p.A.  The ‘381 patent is currently the subject of a litigation styled Merck & Cie, et al. v. Macoven Pharmaceuticals, et al. (Case No. 6:12-cv-27-LED (E.D. Tex.)); In the Matter of Reduced Folate Nutraceutical Products and L-Methylfolate Raw Ingredients Used Therein (Inv. No. 337-TA-857) (USITC)).

(4)         IPR2013-00119 (electronically filed) – U.S. Patent No. 7,172,778 entitled FOOD AND VITAMIN PREPARATIONS CONTAINING THE NATURAL ISOMER OF REDUCED FOLATES and owned by South Alabama Medical Science Foundation.  Filed January 24, 2013 by Gnosis S.p.A.  The ‘778 patent is currently the subject of a litigation styled Merck & Cie, et al. v. Macoven Pharmaceuticals, et al. (Case No. 6:12-cv-27-LED (E.D. Tex.)); In the Matter of Reduced Folate Nutraceutical Products and L-Methylfolate Raw Ingredients Used Therein (Inv. No. 337-TA-857) (USITC)).

(5)         IPR2013-00120 & IPR2013-00121 (electronically filed) – U.S. Patent No. 7,731,558 entitled ILLUMINATED TOY BUILDING STRUCTURES and owned by Capriola Corp.  Filed January 23, 2013 by LaRose Industries, LLC.  The ‘558 patent is currently the subject of a litigation styled Capriola Corp., et al. v. LaRose Industries, LLC, et al. (Case No. 8:12-cv-02346 (M.D. Fla.)).

(6)         IPR2013-00122 (electronically filed) – U.S. Patent No. 7,909,641 entitled CABLE MANAGEMENT SYSTEMS FOR PRODUCT DISPLAY and owned by Merchandising Technologies, Inc.  Filed January 24, 2013 by InVue Security Products, Inc.

(7)         IPR2013-00124 (electronically filed) – U.S. Patent No. 7579016 entitled METHODS FOR REPELLING ARTHROPODS USING ISOLONGIFOLENONE ANALOGS and owned by United States, as represented by the Secretary of Agriculture.  Filed January 25, 2013 by International Flavors & Fragrances, Inc. The ‘016 patent is currently the subject matter of a litigation styled 141 Repellent, Inc. v. International Flavors (Case No. 6:12cv00054 (W.D. Va.)).

(8)         IPR2013-00125 (electronically filed) – U.S. Patent No. 5515369 entitled METHOD FOR FREQUENCY SHARING AND FREQUENCY PUNCHOUT IN FREQUENCY HOPPING COMMUNICATIONS NETWORK and owned by Wi-LAN, Inc.  Filed January 25, 2013 by RIM. The ‘369 patent is currently the subject matter of a litigation styled Wi-LAN USA, Inc., et al. v. Research In Motion, Ltd., et al. (Case No. 12-cv-20232 (S.D. Fla.)).

(9)         IPR2013-00126 (electronically filed) – U.S. Patent No. 6240088 entitled METHOD FOR TWO-STAGE DATA TRANSMISSION and owned by Wi-LAN, Inc.  Filed January 25, 2013 by RIM. The ‘088 patent is currently the subject matter of a litigation styled Wi-LAN USA, Inc., et al. v. Research In Motion, Ltd., et al. (Case No. 12-cv-20232 (S.D. Fla.)).

(10)         IPR2013-00127 (electronically filed) – U.S. Patent No. 6587067 entitled METHOD FOR SELECTING A REMOTE CONTROL COMMAND SET and owned by United States, as represented by the Secretary of Agriculture.  Filed January 26, 2013 by Universal Remote Control, Inc. The ‘067 patent is currently the subject matter of a litigation styled Universal Electronics Inc. v. Universal Remote Control, Inc. (Case No. SACV 12-00329 (C.D. Cal.)). Three other patents are asserted in the litigation, and the petitioner is expected to request inter partes review of those patents.

The following ex parte requests were filed:

(1)         90/012,768 (electronically filed) – U.S. Patent No. 5,997,476 entitled NETWORKED SYSTEM FOR INTERACTIVE COMMUNICATION AND REMOTE MONITORING OF INDIVIDUALS and owned by Health Hero Network.  Filed January 21, 2013 by ExpressMD Solutions, LLC.  The ‘476 patent is currently the subject of a litigation styled Robert Bosch Health Care Systems, Inc. v. ExpressMD Solutions, LLC (Case No. 5:12-cv-00068 (N.D. Cal.)).

(2)         90/012,769 (electronically filed) – U.S. Patent No. D665,487 entitled AIR FRESHENER and owned by Michael Warzocha.  Filed January 22, 2013.

(3)         90/012,770 (electronically filed) – U.S. Patent No. 5,378,043 entitled VEHICLE PIVOTAL HEADREST owned by Lear.  Filed January 23, 2013 by TS Tech North America.  The ‘043 patent is the subject of a litigation styled Lear v. TS Tech North America (Case No. 2:11-cv-245 (S.D. Ohio)).

(4)         90/012,771 (electronically filed) – U.S. Patent No. 8,275,845 entitled SYSTEM AND METHOD FOR VERIFIED CONTRACT ACCEPTANCE and owned by Rpost International Ltd.  Filed January 25, 2013, likely by Docusign.  The ‘845 patent is currently the subject of a litigation styled Rpost Holdings, Inc., et al. v. Docusign, Inc. (Case No. 2:12-cv-683 (E.D. Tex.)).

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