Merck Appeals Obliteration Of Sofosbuvir Patent Infringement Jury Verdict, Just As Gilead Seeks $15 Million In Its Legal Fees

Back in mid-June, I guessed that Gilead’s attorneys’ fees might reach almost $18 million in this matter. My guess was just a little bit too rich.

It turns out that — in a motion filed yesterday, in the federal District Court in San Jose, California — Gilead is seeking just a bit over $15 million in legal fees, from Merck — due to alleged earlier “unclean hands” acts, and inequitable conduct.

At almost the same moment though, yesterday, Kenilworth’s own lawyers filed the previously-promised appeal, sending the case to the federal Circuit, in DC. That appeal cites as error (among other things) Judge Labson Freeman’s set aside of the jury’s earlier $200 million verdict, in Merck’s favor.

And now, while we wait for the replies and argument dates to arrive, I’ll mention in passing that Law.com is making some significant hay out of the fact that the same firm that allegedly gave Hillary Clinton “less than perfect” guidance — on her email difficulties at the State Department — is also the firm that allegedly advised Merck to wait until immediately before trial to disclose the “variances” in Dr. Durette’s testimony, over time. Of course, that “varying” testimony (in large part) led the very able Judge Labson Freeman to set aside the $200 million Merck thought it had earlier won, here. Here’s a bit from Gilead’s fee-recovery motion:

. . . .On June 6, 2016, this Court issued its Order Regarding Non-Jury Legal Issues, in which it found that “Merck’s patent attorney, responsible for prosecuting the patents-in-suit, was dishonest and duplicitous in his actions with Pharmasset, with Gilead and with this Court, thus crossing the line to egregious misconduct. Merck is guilty of unclea[n] hands and forfeits its right to prosecute this action against Gilead.” (ECF No. 422 at 65.)

The Court found that “numerous unconscionable acts” each compelled that finding of unclean hands: “lying to Pharmasset, misusing Pharmasset’s confidential information, breaching confidentiality and firewall agreements, and lying under oath at deposition and trial. . . .”

Ouch. For those keeping score at home, the law firm’s name is Williams & Connolly — a silk stocking/white shoe “Biglaw” firm out of DC. Onward, on a rainy, languid, pleasantly serene Wednesday morning, then — with a wry smile, as ever.

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