Jury Selection Set — For Friday, In First US Trial On Sovaldi® Patent Wars — USDC, ND CA

This may yet settle (even moments before jury selection), but if it doesn’t, it will be some reasonably good theater. Merck claims that Gilead’s Sovaldi® (and now Harvoni®), mega blockbuster Hep C treatments rely on teachings from an old and obscure Merck patent — and thus infringe Merck’s patents.

Gilead answers that Merck’s patent is (at best) nothing more than obvious — an obvious statement of what happens to sofosbuvir, the active ingredient in Gilead’s Hep C treatment, when the human body metabolizes it. If it is in fact held to be obvious, then the Merck patent will be invalid. Game over.

However (to be clear), Merck doesn’t rely on this patent in any of its on-market products — so this won’t be any material downside to Merck should it lose here. On the other hand, it could potentially be a material upside, in the highly unlikely event that Kenilworth wins out completely (and secures a high running royalty — like 10 per cent of all sales). But as I say, that outcome is highly unlikely. As we’ve reported, essentially the same fight is being waged around the globe, in various courts — and this is but one battle-front — but an important one, for the vast US marketplace. From the latest scheduling order, then:

. . . .Set/Reset Hearing Dates:

Jury Selection set for 3/4/2016 09:00 AM before Hon. Beth Labson Freeman.

Pretrial Conference (In Chambers – Off the Record) set for 3/4/2016 10:00 AM before Hon. Beth Labson Freeman.

Bench Trial set for 3/21/2016, 3/22/2016, 3/23/2016, and 3/24/2016 09:00 AM before Hon. Beth Labson Freeman. . . .

Me? I expect that whether it settles on the eve of trial, or reaches a verdict (and, assuming no complete win for Gilead), but then settles, on a royalty rate, if Merck prevails at least in part — the numbers involved will be. . . pretty darn small (compared to Merck’s overall size). Off now, to a work out in the sunshine!

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