Liquidia Corporation misses on earnings expectations. Reported EPS is $-0.36 EPS, expectations were $-0.17.
Operator: Good morning, and welcome everyone to the Liquidia Corporation Second Quarter 2023 Financial Results and Corporate Update Conference Call. My name is Livia, and I will be your conference operator today. Currently, all participants are in a listen-only mode. Following the presentation, we will conduct a question-and-answer session. Instructions will be provided at that time for you to queue up for questions. I would like to remind everyone that this conference call is being recorded. I will now hand the conference call over to Jason Adair, Chief Business Officer.
Jason Adair: Thank you, Livia. It's my pleasure to welcome everyone to Liquidia's second quarter 2023 financial results and corporate update conference call. Joining the call today are Chief Executive Officer, Dr. Roger Jeffs; Chief Financial Officer, Michael Kaseta; General Counsel, Rusty Schundler; and Chief Medical Officer, Dr. Rajeev Saggar. Before we begin, please note that today's conference call will contain forward-looking statements, including those statements regarding future results, unaudited and forward-looking financial information as well as the company's future performance and/or achievements. These statements are subject to known and unknown risks and uncertainties, which may cause our actual results or performance to be materially different from any future results or performance expressed or implied on this call.
For additional information, including a detailed discussion of our risk factors, please refer to the company's documents filed with the Securities and Exchange Commission, which can be accessed on our website. I would now like to turn the call over to Roger for our prepared remarks, after which, he will open-up the call up for your questions.
Roger Jeffs: Good morning, everyone and thank you for joining us. In our opening remarks. Today, we're going to take a very focused approach to address the issue that is most top of mind for our company, our employees, and our shareholders, specifically the path forward as we see it, to the successful resolution after litigation and launch of YUTREPIA for both PAH and PH-ILD. I will note, however that in addition to the significant legal derisk and Rusty will talk about shortly, we also achieved other major and important milestones in the quarter, most notably the license of L606 a Phase 3 clinical program for twice-daily liposomal formulation of inhaled treprostinil. That position us with the best-in-class portfolio of inhaled treprostinil products to best address patient needs, not only today, but also in the future.
As mentioned, the bulk of our prepared remarks will focus on the recent legal and regulatory actions related to the ongoing litigation. I have asked Rusty to elaborate on four specific points. First, the favorable affirmation by the Federal Circuit that we do not infringe any valid claims of the 066 patent. Second, our confidence that United's attempt to overturn the PTAB decision on the 793 patent will fail. Third, the positive impact in submitting an amendment to add the PH-ILD indication to YUTREPIA label. And lastly, our confidence in why we feel that the recently allowed patent claims to United Therapeutics related to the treatment of PH-ILD will not be an impediment to YUTREPIA. Rusty?
Rusty Schundler: Thank you, Roger. As a reminder, Liquidia has been party to two separate appeal proceedings at the Federal Circuit that are relevant to the launch of YUTREPIA. Broadly speaking, the appeals relates two patents asserted against Liquidia, the 066 patent, which describes a way of making and storing treprostinil and the 793 patent, which describes the method of use to treat patients with pulmonary hypertension. Before walking through the recent decisions and activities, I would like to point out that our guidance over the last 12 months is still the same. We believe the ongoing litigation will be concluded between the end of 2023 and the middle of 2024, clearing the path to final approval and launch of YUTREPIA.
Laboratory, Medicine, Health
Photo by National Cancer Institute on Unsplash
The only thing that has changed in the last year is our increased confidence in our guidance with each legal decision. Now moving to the recent decision. On July 24th, the Federal Circuit affirmed the District Court's decision from last August in the Hatch-Waxman litigation. The outcome of the appeal was in line with our expectations, meaning 506 claims, the 066 patent were affirmed as obvious unpatentable and thus invalid, and that YUTREPIA does not infringe the single valid 066 patent claim that was asserted against us. The Federal Circuit also affirmed that YUTREPIA infringes the asserted claims of the 793 patent and that based solely on the arguments presented in the Hatch-Waxman litigation, the 793 patent is valid. However, the court also commented in the written decision that the court is aware that the Patent Trial and Appeal Board, or PTAB, has found all of the claims of the 793 patent to be un patentable and that the PTAB decision is on appeal, which I will discuss shortly.
As we've noted previously, should the PTAB decision be affirmed on appeal, the 793 patent would be completely invalidated and all previous rulings related to the alleged infringement of the 793 patent would be dissolved. Liquidia would then be free to seek final approval from the FDA for YUTREPIA. As next steps with respect to this Federal Circuit ruling, it is possible that one or both parties could seek a rehearing by this three judge panel and/or a hearing on bank [ph] in front of the full Federal Circuit. One or both parties could also file for CAFC with the United States Supreme Court. However, we see nothing in the Federal Circuit's decision regarding the 066 patent that we believe is likely to lead to any further rehearing or CAFC being granted.
Even if a rehearing or CAFC is granted, it is important to remember that all four judges who have ruled on the 066 patent between the District Court and Federal Circuit have found the 066 patent claims to be invalid or not infringed. Regardless, our ability to seek final approval for YUTREPIA is not contingent on the conclusion of rehearing or appeal of the affirmed Hatch-Waxman decision. The proceeding that is currently limiting our ability to seek final approval for YUTREPIA is United's appeal of the PTAB's decision which invalidates the 793 patent, which I mentioned briefly earlier. To summarize, all of the 793 patent claims have been ruled by the PTAB to be on patent. Their first ruling was in July, 2022. The merits of liquidity's arguments were further reinforced in February, 2023 when the PTAB denied United's request for a rehearing and reaffirmed that all of the claims are obvious over publicly accessible prior art.
In April, United appealed the PTAB's decision to the Federal Circuit and briefings should be completed in the fourth quarter of this year. Once briefing is completed, the Federal Circuit has ordered oral arguments to be scheduled on the next available date in its calendar, which we expect to be in the late fourth quarter 2023 to early 2024. Once heard, the Federal Circuit could issue its ruling by one of two procedures. First, the court could issue a simple summary affirmance of the PTAB's decision within a few days after oral argument. Or second, the court could issue a full written opinion, in which case we would anticipate likely receiving the decision within a few months after oral argument similar to the timing of the Hatch-Waxman appeal decision.
We'll not predict which of these decision passes is unlikely. However, whenever a favorable decision is issued, Liquidia will immediately seek final regulatory approval for YUTREPIA. With these timeframes in mind, we continue to believe that the ongoing litigation will be concluded sometime between late 2023 and early 2024. I'd like to turn now to the amended NDA that Liquidia submitted to request the addition of the PH-ILD indication to the proposed label for YUTREPIA. The amendment was filed on July 24, the same day that we received the decision in the Hatch-Waxman appeal. Due to the nature of the amendment, we were required to issue a second Paragraph IV notice that certified as of the date of the submission that the 6 patents listed for Tyvaso in the Orange Book are invalid and/or not infringed by YUTREPIA.
Three of those patents, the 066, 901 and 793 patents, are the same three patents that have been litigated over the last several years and has been found to be invalid or not infringed by YUTREPIA. The other three patents in the Orange Book for Tyvaso are directed specifically to the nebulized delivery of treprostinil are completely unrelated to YUTREPIA, and we're not asserted against the liquidity in the original Hatch-Waxman litigation. Although, it is possible that United could file a new Hatch-Waxman lawsuit based on this amended NDA. The existing Federal Circuit decisions on this 066 and 901 patents and the future favorable affirmance of the PTAB's invalidation of the 793 patent would be binding once finalized on appeal. Under well-settled legal principles, United cannot maintain a second lawsuit for infringement of the same old patents against the same YUTREPIA products.
Even if a new lawsuit is filed and a new 30-month stay is at the FDA is triggered, that lawsuit would effectively end upon completion of the 793 appeal because all issues in the new lawsuit would've been decided and in binding at that time. Thus, although it's possible that the amended NDA could trigger further litigation from United, we do not anticipate any material change to our timeline. Finally, I want to address the new patent claims allowed to United at the end of June, which covered the treatment of PH-ILD patients with inhaled treprostinil. We expect the patent will issue in the coming weeks and likely be added to the Orange Book for Tyvaso. Two main questions we have received have been A, how do these claims impact the FDA's approval of YUTREPIA for PH-ILD?
And B, How could the USPTO grant these claims given the unpatentability of the 793 claims to treat patients with all forms of pulmonary hypertension? I will address each of these in turn. As the first question is important to note that because the new patent was not listed in the Orange Book at the time we submitted our NDA amendment, there will be no 30-month stay at the FDA that attaches to this new patent. While we expect United may file a lawsuit alleging that a liquidity infringes this new patent, we would not automatically be delayed in our ability to seek final approval for the PH-ILD indication. Instead, the burden would be on United to seek and prevail on obtaining a preliminary injunction. To do so, the burden would be on United to demonstrate among other things that they are substantially likely to prevail on the merits of the case.
Historically, the courts have generally declined to grant preliminary injunctions in situations where there are substantial questions as to the validity of the patented issue. This brings us to the second question. How could the USPTO grant these claims given the unpatentability of the 793 claims to treat all of pulmonary hypertension? As you know, we cannot reveal the details of our legal positions. That being said, we strongly believe that this new patent will be found to be invalid because of substantial prior art that predates the priority date of this new patent application and fully anticipates all of these new patent claims. For example, the 793 patent itself, which was filed in 2007 and predates this new patent implication by more than 10 years, already covers and closes the same treatment of inhaled treprostinil to patients with all groups of pulmonary hypertension, including PH-ILD as United itself has argued in court.
In addition, over the last 10 to 15 years, many physicians have conducted and published studies and analyses regarding the treatment of PH-ILD patients with treprostinil including inhaled treprostinil. In fact, our own Chief Medical Officer, Rajeev Saggar, explored these of treprostinil to treat PH-ILD patients almost 15 years ago, measuring the same basic endpoints that are identified in this new set of patent claims. A great many of these publications predate United's new patent application by a number of years and constitute prior art to the new patent. Ultimately, this new patent will likely be litigated, but is fundamental to patent law that a patent that is not novel and covers methods of treatment that were already widely known will not be valid.
Accordingly, we strongly believe this new patent will not affect Liquidia's ability to commercialize YUTREPIA. In summary, the merits of Liquidia's arguments remain sound and if affirmed will open the door to treating patients in the near future, and we do not view this new patent as having any impact on that result. I'll now pass the call on to Mike to briefly address our financial reporting. Mike?
Mike Kaseta: Thank you, Rusty and good morning, everyone. Our second quarter 2023 financial results can be found in the press release and the 10-Q filed this morning. Broadly speaking, the company continues to execute and manage its business activity with financial discipline in mind. We ended the second quarter with $88.2 million in cash, equating to a net burn of only $5.1 million over the first six months of this year. During the quarter, revenue from treprostinil injection increased $0.9 million compared to the same quarter last year due to favorable gross to net charge back and rebate adjustments, while cost of sales remained flat at $0.7 million. R&D expenses in the quarter increased $12.5 million compared to second quarter 2022, primarily due to the $10 million upfront payment tied to licensing North American rights to L606 from Pharmosa Biopharma and expense which has been offset by the [Technical Difficulty].
Overall, the company remains well-positioned financially through the key value-creating milestones tied to the resolution of the litigation. We are preparing to launch YUTREPIA with speed, building a pipeline with new product and remain opportunistic in our ability to create value going forward. With that, I'd like to now turn the call back over to Roger.
Roger Jeffs: Thank you, Mike and thank you, Rusty, for clearly articulating why the merits of our case give us great confidence. And importantly, while we anticipate our timeline for legal clarity to remain as we have been saying, specifically between the end of 2023 and of 2024. With that, I would now like to open the call for questions. Operator, first question, please.
