Repros Worried About Validity of its Androxal Patent

THE WOODLANDS, Tex. ( TheStreet) -- Repros Therapeutics ( RPRX) CEO Joe Podolski likes to assure investors the company's testosterone-boosting pill Androxal is backed by strong patent protection. But Repros' action to affirm the Androxal patent in a Texas court suggests the company is actually much more worried than it lets on about the risk its Androxal patent is invalidated.

Monday, Repros said it filed an action in federal court, "seeking a declaratory judgment affirming Repros' intellectual property rights relating to its Androxal technology. This action is being taken to address issues alleged by a third party relating to the Repros issued patents claiming the use of the pure trans isomer of the drug clomiphene citrate."

That last sentence is key. That "third party" referred to by Repros is Dr. Harry Fisch, a New York urologist who accuses Podolski of stealing the idea for Androxal from him after a face-to-face meeting in New York City. Podolski denies Fisch's theft charge, but Repros began developing Androxal after the meeting between the two men.

Fisch has his own U.S. patent, awarded in 2001, covering the use of clomiphene to treat androgen testosterone deficiency in men. Repros' Androxal is an isomer of clomiphene. The company's U.S. patent covering Androxal was granted after Fisch's patent.

Monday's action by Repros appears to be the company playing defense, hoping a U.S. court will declare its Androxal patent valid. But why take this extra-ordinary legal action unless there was some real concern and risk that Repros' patent could be declared invalid?

Repros has long said it wants to license Androxal to a large drug company for commercial marketing, but again, Monday's action suggests the company is having trouble with partnering negotiations. It's likely most potential Big Pharma partners don't want to go anywhere near Androxal with the drug's patent protection in dispute.

Fisch might also respond to Repros' legal action by seeking to convince the court not to affirm the company's Androxal patent. Fisch could also go one step further and seek a court ruling declaring himself co-author of the Repros Androxal patent (on the grounds that the company stole his idea.)

In other words, Repros would have to establish Fisch as co-owner of the Androxal patent and all the economics that flow from it. Clearly, this would be a disastrous turn of events for Repros.

Fisch had no comment Monday on what actions he might be taking in light of Repros' legal filing but he said he was conferring with his patent attorney.

Repros shares were down 1 percent to $20.47 in Monday trading.

-- Reported by Adam Feuerstein in Boston.

Adam Feuerstein writes regularly for TheStreet. In keeping with company editorial policy, he doesn't own or short individual stocks, although he owns stock in TheStreet. He also doesn't invest in hedge funds or other private investment partnerships. Feuerstein appreciates your feedback; click here to send him an email.

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