I believe AEZS managed to get a European patent for the perifosine-capecitabine combo valid till 2021, IIRC. No news from KERX regarding the status of the patent application in the US.
Good point about the phase 3 study possibly enrolling more patients in later lines. In the phase 2 study, most patients were 3rd line patients. X-PECT will possibly have a greater proportion of 4th line patients, depending on how many KRAS wild type patients enrol in the study.
As to what the better play is, I'm not sure. AEZS does have a deeper pipeline, so there is some downside protection although not a whole lot IMO. Their other phase 3 product is not expected to generate more than 25m in sales per year. AEZS-108 might have an opportunity in gynecological cancers, but unless it demonstrates superior efficacy to doxorubicin, I think its commercial upside will be limited. It has a better toxicity profile, but I don't think that alone will be sufficient to command a high premium over doxorubicin.
KERX has stated that they would be looking for potential buyers if X-PECT succeeds. I don't know if that makes it a better or worse short term jnvestment.