As Of Last Friday, It Looks More And More Likely That Merck Will ALSO Lose In Delaware — As It Did In California — In The Hep C Patent Wars, With Gilead

As of Friday evening, in Delaware’s federal US District Court, Gilead had filed its redacted version of the papers which recite why Merck’s patent infringement claims should be bounced without need for any trial, there. You’ll recall that Merck saw those infringement claims bounced out of court in California’s Northern District Court, just a few months back. I foresee much the same outcome here — especially after this latest filing, from Gilead’s legal team.

Here is that memo of law in support of the motion (as a PDF file), and a bit that was not redacted:

. . .[Merck’s] problem is that it seeks to limit the claims to a subgenus of effective nucleosides, yet its patents provide no antiviral data or other blaze marks that distinguish between nucleosides that work and those that do not.

[Merck] cannot have it both ways: if the claims are limited in that manner, then the patent must direct the skilled artisan to that narrowed set. [Merck’s] main response is to try to use its expert to backfill what the patent lacks, but precedent prohibits that approach. [Merck’s] few citations to the patent itself are both legally insufficient and telling: the only supposedly exemplary compounds and data it relies on were not in the original May 2000 application and were added only in May 2001, when [Merck’s precursor company] was still just beginning to start testing compounds without yet knowing what was effective. [That precursor company’s] patents present nothing more than a research plan that left the real work — identifying an effective nucleoside like 2’-F down — to others. The claims, under any construction, are thus invalid as a matter of law. . . .

Now you know. And onward we sail, out into the oncoming cold — of The frigid shepherd moons’ Jovian orbital space — but not quite so alone, after 2 PM EDT today. . . smile. [Getting ready to watch HRC gracefully lop off the GOP nominee’s rhetorical head, tonight. He so richly deserves it.]



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