Healthier Choices Mgmt Corp (HCMC)

[Lucy K]

Correct. Plus PM already has another means of redress in the Court and asking the patent office for a do-over is a manifest waste of resources. Finally, an IPR is not the death knell. The claims of the HCMC patent can be affirmed. They can be amended and emerge even stronger from this process. (they can also be invalidated of course). However, with 27M in the bank, HCMC has the resources to capitalize here and to turn this into a potentially amazing and real benefit.

Here is a good strategy to turn the IPR petition into a positive in my opinion: Without the IPR, HCMC would not have any opportunity to amend and to strengthen the claims of the patents. There are always weaknesses that the patent owner cannot fix but recognizes when they get into a litigation. If an IPR were to be instituted here, the IPR process would provide some capability, if the circumstances present themselves, for HCMC to amend the claims, thereby strengthening the patent. In that way, the IPR process can actually backfire on PM in that sense. Usually a patent owner is left with no capability to change the claims of the patent. The IPR process allows for changes and HCMC can do that with some knowledge of how the accused product works. Here is a link to an article where a patent owner, faced with an IPR challenge, did just that, i.e., amended claims to fix issues that were present in a parallel litigation:

https://www.mintz.com/insights-center/viewpoints/2231/2019-12-ptab-allows-amending-claims-grounds-not-raised-petitioner