Hep C Patent Fight Follow-Up: On The “Lost” $200 Million — And The Role Of The Trial Judge, As Fact Finder

As I mentioned last night, I think it highly-unlikely that Kenilworth will prevail on appeal — should it file one, here.

That is so because the trial was overseen by a very able federal District Court (trial) judge, and that judge made numerous, very specific factual findings, in her opinion, findings assessing the credibility of witness who testified live and in person, in front of her, over several weeks of trial. The applicable law on appeals (like this one) generally holds that credibility determinations made by trial judges (absent manifest bias) are to be given great deference. She heard the witnesses, she watched their non-verbal cues — their “tells“, and heard their stammering(s). None of that comes through in a “cold” transcript. So, courts of appeal generally leave undisturbed the findings of trial court judges — as to witness credibility, and more to the point — deceptive conduct.

And so, while I’d never say “never” — it is highly unlikely, given the page after page of specific trial court credibility determinations set out in that 65 page opinion, that an appeals court is going to say the trial judge “got it wrong” about whether Dr. Durette is guilty of unclean hands. Here’s just a bit of that, from the opinion:

. . . .At deposition, Dr. Durette testified that he was not sure he saw the Clark publication prior to amending the claims. Durette Dep. Tr. 48:10-52:1, ECF 410-3. Given the timing of his amendment, mere days after the Clark publication, and his contradictory and evasive testimony at trial, the Court finds Dr. Durette’s deposition testimony is not credible. . . .

Dr. Durette’s changing and evasive explanations for why he narrowed the claims undermine his testimony. The Court finds his testimony to be not credible. . . .

Additionally, Dr. Durette’s claim that he amended the ’499 claims to focus on “get[ting] allowance on the subject matter that was most important to the [Merck-Isis] collaboration” is contrary to the evidence and is not credible because Merck never tested any of the claimed compounds. Stipulation, ECF 300; Trial Tr. 554:6-10 (stipulation). . . . Neither Merck nor Isis tested a single compound falling within the new claims of the ’499 Patent during the Merck-Isis collaboration that ended in 2003. . . .

The Court finds that it is not credible that compounds that were never made, used, or tested during a collaboration were considered by Merck to be the most important work of the collaboration. . . .

I suppose it is possible that an appeals court will say she mis-applied the law, here — but that is not what Merck’s current sound-bites suggest. Merck has said that it disagrees with the court’s FACTUAL findings: i.e., “The judge’s ruling does not reflect the facts of this case. . . .”

That in turn greatly increases the odds that Gilead never pays a penny to Merck in patent royalties — even on valid Merck patents. I now wonder whether Gilead will seek its attorneys’ fees, in defending at least that portion of the trial which flowed from Dr. Durette’s “over-conclusions“. Me? I think Merck ought to settle with Gilead, by agreeing not to appeal. That’s my take. Cut your losses, Kenilworth. . . . Here endeth the sermon. Onward — on a lovely June afternoon. . . walk-about!


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