UPDATED Analysis: Sovaldi® Patent Battles Still Very Likely To Settle — Via ADR — ALSO EXCLUSIVE

Upon a little more reflection this morning, over coffee, OJ and a banana, it occurs to me that even though Merck has been granted a broad patent claim construction victory here, at the trial level, Gilead is now increasingly likely to be persuasive on the notion that Merck’s claimed patent is so broad, as to be invalid.

Thus, the very wise Judge Freeman has (I think) drafted an opinion that is absolutely correct on the law, and which not entirely coincidentally, encourages both sides to settle via the ongoing ADR process, rather than leave it in a “winner take all” binary outcome, at trial. I mentioned her sublime footnote four last night, and here it is, in full:

. . . .4. The Court notes that Merck’s preferred construction could pose invalidity problems for Merck down the road. It rejects, however, Gilead’s argument that it should adopt Gilead’s proposed construction in order to preserve the claims’ validity. See Gilead’s Br. at 24; see also Phillips at 1327 (“[W]e have certainly not endorsed a regime in which validity analysis is a regular component of claim construction.”). . . .

This is just excellent judicial draftsmanship. Simply excellent. So, I would expect that both sides will continue to look for ways to resolve this without having a judge take all — from one, or the other.

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