Update On The Delaware USDC Oral Arguments Today — Gilead Hep C Patent Spats Edition

Matching the order at the end of the day, today — to the agenda that preceded it by a few days — I might reliably offer at least a few fairly-solid conclusions, even just from this cold electronic record. Smile.

There was a long day of argument, and in the end, Judge Stark has reserved on the question of whether Gilead should prevail on summary judgment, at least as to the idea that Merck/Idenix had not provided a sufficiently precise written description in the patents in question — to avoid being invalid for vagueness (i.e., the written description invalidity contention mentioned below). SO now the new trial date (should the parties fail to settle prior to that time) is December 5, 2016. Here’s the full oral minue order, from the bench, transcribed electronically into PACER, an hour or so ago:

. . . .ORAL ORDER: For the reasons stated by the Court at today’s hearing, IT IS HEREBY ORDERED that:

(i) Plaintiffs’ Motion to Strike (C.A. No. 13-1987 D.I. 295) is DENIED;

(ii) Plaintiffs’ Motion to Strike (D.I. 326) is GRANTED;

(iii) Defendants’ Motion for Summary Judgment (D.I. 298) is DENIED WITHOUT PREJUDICE with regard to Defendants’ written description invalidity contention and DENIED with regard to the motion’s remaining grounds;

(iv) Plaintiffs’ Motion to Preclude (D.I. 305) is DENIED;

(v) Defendants’ Motion to Preclude (D.I. 308) is DENIED;

(vi) the Scheduling Order (D.I. 42) is AMENDED to remove the October 11 trial date and a jury trial will proceed on December 5, 2016, with a pretrial conference on Wednesday, November 23 beginning at 9:00 a.m.; and

(vii) the Parties SHALL submit a joint status report no later than July 29 containing (a) a proposed briefing schedule for supplemental construction of the relevant ‘054 and ‘597 patent claim terms, (b) a proposed briefing schedule for a renewed motion for summary judgment for lack of written description, and (c) proposed amendments to the Scheduling Order (D.I. 42) to account for the December trial date and reopening of fact and/or expert discovery related to the denial of Plaintiffs’ Motion to Strike (D.I. 295). ORDERED by Judge Leonard P. Stark on 7/26/16. . . .

Now you know. A big day, for both sides — and a delayed trial date, while the parties engage in the remaining discovery (from one another) — that each had sought to avoid, by filing these motions. Onward, with a smile. . .

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