The Latest Delaware Federal District Court Challenge — To Gilead’s Win, At The USPTO On Interference — Is Likely To Be Summarily Dismissed

Still remaining are  several other suits — on the broader IP issues here — but this most recent one (just filed in May 2015) looks like a loser, for Merck (via its purchase of Idenix).

Gilead’s lawyers just filed a motion to dismiss this latest suit — for lack of subject matter jurisdiction. And it looks to me like a clear winner. In fact, Merck’s lawyers indicate (via footnote) that they do not oppose this motion. A very recent appellate case has found the interference challenge arguments of Idenix, and therefore, Merck — to be out of bounds, here. A case called Biogen (involving that company) has established this pretty firmly. So now you know:

. . . .On May 7, 2015, the United States Court of Appeals for the Federal Circuit affirmed the district court’s holding in Biogen and held unequivocally that “the AIA eliminated district courts’ subject matter jurisdiction under pre-AIA 35 U.S.C. § 146 to review decisions in interference proceedings declared after September 15, 2012.” Biogen, 2015 WL 2109812, at *10.


Despite that ruling, two weeks later, on May 21, Idenix filed its complaint in this case, seeking review of the PTAB’s decisions in the ’981 interference pursuant to 35 U.S.C. § 146. Idenix acknowledged the Federal Circuit’s Biogen opinion, but disagreed with its holding and stated that it filed its complaint “to exercise and preserve [its] right to pursue a Section 146 action.” (D.I. 1, at Footnote 1.) Idenix also informed this Court that it would be simultaneously appealing this same interference to the Federal Circuit under § 141. (Id.) Indeed, the next day, Idenix filed a second “Notice of Appeal” seeking review of the same rulings in the same interference in the United States Court of Appeals for the Federal Circuit pursuant to 35 U.S.C. § 141. . . .

We will keep you updated — on all the other facets of this potentially multi-billion-dollar series of claims and counterclaims, in litigation, which now sprawl across courtrooms in most of the developed world. But that’s for another day — as it is truly lovely out — and, off I go.

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