BIO Files Amicus Brief Urging Supreme Court Review of Patent-Related False Claims Act Case

BIO filed an amicus brief supporting Supreme Court review of a patent case involving the public disclosure bar of the False Claims Act (FCA). The brief argues that the 9th Circuit erred when it held that an administrative patent challenge proceeding in the Patent Trial and Appeal Board (PTAB) is not “publicly disclosed” for purposes of the FCA because (1) the government is not a “party” to an inter partes review (IPR), and (2) an IPR proceeding is not sufficiently “investigative” to be a “hearing.” BIO believes that this decision is wrong and must be corrected, because otherwise relators could bring FCA claims based only on their “insights” from publicly-available information in the PTAB record, without otherwise contributing any new or non-public information.