Latest Skirmishes — Merck Vs. Gilead — No Multi-Billion Dollar Early “Patent Interference” Resolution: Judge Stark

For the last three weeks, Merck and Gilead have been exchanging letters, through the very able Delaware federal District Court Judge Leonard Stark’s electronic file docket. The argument at the moment has been over whether (as Gilead wished) some summary decisions might be made on so-called Sovaldi® “patent interference” proceedings, well-ahead of a trial “on the merits” — of the challenged patents (under which Merck makes its claims here), themselves.

Gilead contends that the proceedings would be more efficiently and orderly handled — if that issue were decided shortly — in some sort of a summary fashion. Merck’s contention is essentially that the same process which governs such matters inside the USPTO ought to apply here. That is, the question of interference arises only in the context of whether the disputed patent is valid, and infringed. In other words, Merck feels this question should be kicked down the road a bit, and resolved as part of the overall trial proceedings — involving questions of both law and fact.

Judge Stark agreed last Thursday in Delaware, but for a differing reason: he pointed out (quite correctly) that Gilead agreed — nearly nine months ago — to an overall scheduling order, and made no mention of this idea of running a mini pre-trial, on interference. So, he has essentially ruled that Gilead waived its right to separate and accelerate the interference issue. Here’s that oral order, from the bench:

. . . .ORAL ORDER by Judge Leonard P. Stark: Having reviewed the parties’ recent letters (D.I. 133, 135, 136, 137), IT IS HEREBY ORDERED that Gilead’s request that the Court “define the interference counts” in connection with claim construction — which the Court construes as a request to modify the scheduling order — is DENIED. Given the parties’ vastly contrasting views as to the best and most efficient manner for the interference portions of these cases to proceed, the Court deems the appropriate exercise of its discretion to be to adhere to the schedule the Court entered at the outset of the cases. Issues relating to the definition of the interference count will be resolved in connection with summary judgment, at trial, or after trial. . . .

And so it is that our summer laze and haze is fully present — we are in full-on relaxed mode now. . . consequently we forecast lighter blogging storms than might obtain in the cold winter months, by the fire.

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