Merck Didn’t Fare Very Well At All, In Court In San Jose, California Yesterday…

Regular readers will recall that Merck has been called to task, in the federal courts, for the the Northern District of California, for inequitable conduct, and unclean hands, in what would have otherwise been its $200 million patent infringement jury award — against Gilead. At stake were potentially billions (over the life of the franchises), in royalties — on the life saving Hep C cures Sovaldi® and Harvoni®, made by Gilead.

No more. Merck’s conduct has scotched that. Yesterday, in a hearing in San Jose, before the very capable Judge Beth Labson Freeman, on whether to award Gilead some $14.6 million in legal fees and expenses, money it says it spent defending itself against Merck’s nefarious conduct, the court let it be known that it was likely going to award Gilead its fees, but would look over the bills submitted “with a scalpel. . . .” All of this comes from the Courthouse News Service, reporting from the gallery — do go read it all (it contains a much longer reciting of the entire case history):

. . . .On Thursday. . . Gilead attorney Juanita Brooks said her firm was entitled to those fees because the conduct of Durette at trial meant lawyers had to work overtime to adjust to the shifting assertions he made. . . .

Merck could have prevented us from running the meter by taking the right road,” she said.

[US District Court Judge Beth Labson] Freeman indicated she will award fees to Gilead, but also indicated she will wield “a scalpel”. . .

One of the other reasons [the judge] wants to settle the matter of attorney’s fees is to iron out all the details for the ensuing appeal. “I want to make sure I’ve done everything before this case moves on to the Federal Circuit,” [Labson] Freeman said. . . .

So yes, there will — as ever, in litigation of this magnitude — be appeals, in this case, to the federal Circuit. But once again, the wise Judge Labson Freeman is encouraging the two to agree to a fee figure, instead of forcing her to rule. My own instinct tells me that if she does rule, Gilead will see more than $13 million of its fees ordered paid, by Merck.

And so a great Friday awaits — with camping in the wilds over the weekend, to boot — on a secluded lake. Smile. . . onward, then!

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