Seems It’s Gotten Nasty, Between Gilead And Merck: With Allegations Of Crimes — Sovaldi® Patent Wars

Well, this is not something you run across every darn day. . . But first off — the caveats: I will offer no opinion on the merits of these claims or counter claims. I will simply report on them — from an entirely public court filing, in the federal District courthouse, in Delaware — just this very morning.

Secondly, it is very hard to infer very much, here — since the documents in question are largely blacked out (redacted), at the key passages.

However, it is plain that Merck’s counsel is at least alleging that the e-mails Gilead seeks to “claw back” — ones that Gilead claims were inadvertently produced (in an earlier backgrounder of mine, here, as early as May of 2015) — concern a predecessor to Gilead offering instuctions “made for an improper purpose and in furtherance of a crime or fraud. . . .” In plainer English, then, the claim is that an agent for Gilead’s prior entity was trying to deceive the patent authorities, and apparently trying to do so, about Merck’s allegedly earlier prior art. But that last little bit is really a guess.

I attach here a PDF of the whole four-page letter, with all redactions, so that my readers may judge for themselves — but this fight has suddenly turned especially nasty. [Editorial note: in the syntax of that letter, Idenix is the prior entity in interest, to Merck, here.]

We will, of course, keep you posted as this develops — and will update if/when the court in Delaware rules on the clawback motion, proper. But that is. . . just ugly, IMHO — as the truth sometimes. . . turns out to be. I’ll have a more sunnily-themed post tomorrow, I am sure. Onward.

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