[U] Merck v. Gilead Patent Battle, Out East: Judge Burke Is Hearing Argument Now

UPDATED: 06.22.2016 @ 2 PM EDT — Judge Burke has ruled against Gilead. The motion has been denied; Gilead will have to comply with the discovery requested by Merck:

. . .Discovery Teleconference held on 6/22/2016. The Court heard argument from the parties and denied Defendants’ request. . . .

Longer term, I still expect that the same problem faces Merck/Idenix as it faced in Northern California: There is now competent evidence, and more importantly, a District Court ruling, to the effect that Merck’s patent rights rely on inequitable conduct — as to a Gilead precursor (called Pharmasset). As such, at least one court has held that Kenilworth cannot enforce whatever patent rights it might have as against any successor to Pharmasset — like Gilead. So, I expect this will settle, eventually, with no net inflow to Merck — only an outflow, for the ultimate payment of Gilead’s attornetys’ fees, spent defending against Merck’s infringement action. Now you know. End, update.

We will update this report — when the electronic record is updated to reflect any dispositive order or other outcome, but as I type this entry, the two sides are live (by teleconference) appearing before the able District Court Judge Christopher J. Burke, in the US District Court in Wilmington, Delaware. I expect the hearing will take most of the morning, EDT.

Check back after lunch. Here’s the latest, as of 9 AM EDT:

. . . .As a result of an oral order from Chambers dated June 21, 2016, and in response to Gilead’s submission filed on June 20, 2016 (D.I. 324) and Idenix’s responsive submission filed on June 21, 2016 (D.I. 333), the parties will present their respective positions consistent with the Court’s prior order regarding discovery matters during a teleconference on Wednesday, June 22, 2016 at 9:30 a.m. with counsel for Gilead to initiate the call.

Dated: June 21, 2016. . . .

Onward on a sullen, stormy and steamy walk in — the city is brooding and hot, this morning — as am I, too. Smile. . . .

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