Merck Is Picking A Federal Jury In San Jose, California Right Now — Next Campaign, In The Global Sovaldi®/Harvoni® Patent Wars

My latest guess is that we will see the jury all set, and seated by Tuesday of next week — with the first opening statements, following that same afternoon. But it could take a little longer.

Why? well. . . at least as of last night, Gilead and Merck couldn’t even agree on who will “go first” — in making opening statements. I won’t bore you with all the mundane details, but it comes down to who really is the first mover here — the party seeking to enforce its patents (Merck, et al.), or the party claiming those patents are invalid (and/or not infringed) — for a host of reasons (i.e., Gilead, et al.). So we may see some more in-chambers skirmishing, before the jury is even seated.

Likewise, it does seem there will be no last-minute settlement here, as lots of proposed jury instructions and verdict forms have been filed with the court overnight, and into this morning. What is clear now, though, is that after the jury trial (assuming that the jury doesn’t find all of Merck’s patents invalid), there will also be a bench trial (before the able judge, only) — on several of the more mundane, technical and nuanced patent law defenses and counterclaims.

As ever, we will keep the readership duly informed. Here is just a small bit of what Merck is asking the very able Judge Freeman to instruct the jury, as the trial opens, in a few days’ time:

. . . .Presentation of the case will take place in two phases. In the first phase, Gilead will present its case that claims 1 and 2 of the ’499 patent and claims 1-3, 5, 7, and 9-11 of the ’712 patent are invalid. If, at the conclusion of that phase, you decide that any of those claims are not invalid, then in the second phase of the case, Merck. . . will present their case regarding the amount of damages to be awarded to them. . . .

MRK-ALT-GIL-2014 There are two standards of proof that you will apply to the evidence, depending on the issue you are deciding. On some issues, such as whether an asserted claim of the patents is valid, you must use a higher standard of proof, called the “clear and convincing evidence” standard, and decide whether the evidence creates an abiding conviction in your mind that the facts are highly probable that prove that the claim is invalid. On other issues, like the amount of damages owed to Merck, you must decide whether something is more likely true than not.

As I explained earlier, it is not disputed that, if the patents are valid, the use of Gilead’s products Sovaldi® and Harvoni® infringes claims 1 and 2 of the ’499 patent and claims 1–3, 5, 7, and 9–11 of the ’712 patent, and that Gilead is responsible for inducing and contributing to this infringement. . . .

In the mean time then, go out and enjoy all that weekend sunshine, one and all — I know I will.

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