I Now Expect A Delay In The Trial Date — For The Delaware Version Of Merck-Gilead Hep C Sovaldi®/Harvoni® Patent Litigation

mrk-gilead-patent-de-11-2016UPDATED — PART II here. While I was off the grid (out west) last week, the parties (in Delaware federal District Court) filed various papers under seal.

Now, the redacted — but unsealed — versions are available. [My older backgrounder here.] From these, we learn that while an appeal is pending related to the so-called ‘600 patent, it would make little sense to go forward with a possibly meaningless trial. So my guess is no December 2016 trial date here.

Here’s the most operative bit, from Gilead’s opening brief (editors’ nota bene: do recall that Idenix is now. . . Merck, by acquisition) — just unsealed yesterday (and a link to the 12 page PDF file of it):

. . . .First, the Federal Circuit has still not ruled on the ’600 patent appeal, meaning that if trial proceeds in December without the ’600 patent, there remains the risk that a second trial on the ’600 patent will later be necessary. Significantly, the degree of overlap between the trial presentation for the ’054/’597 patents and the ’600 patent now appears to be even greater than was anticipated during the July hearing, making duplicate trials even less efficient for the parties and the Court and more disruptive for the likely witnesses.

Second, to support its opposition to Gilead’s defense of Merck’s prior invention, Idenix has now produced a 185-page declaration on the topic of Idenix’s diligence related to the ’054 and ’597 patents from Gilles Gosselin, a witness whom Idenix previously represented had no testimony relevant to the ’054 and ’597 patents. Not only does Idenix now represent that Dr. Gosselin’s testimony is relevant to those patents, Idenix has identified Dr. Gosselin as a live trial witness and its key witness on the topic of Idenix’s diligence, yet has not agreed to make Dr. Gosselin available before the December trial for a deposition on that critical topic.

Similarly, Idenix has produced a 49-page declaration from David Standring, also on the topic of Idenix’s diligence, and has likewise not agreed to make Dr. Standring available for deposition before the December trial. Thus, even setting aside the ’600 patent appeal, proceeding to trial in December would unfairly prejudice Gilead’s ability to respond to Idenix’s new diligence contentions, which warrants a short continuation. . . .

We will keep you posted. And in the coming days, I will try to thoughtfully explain why Mr. Trump’s election may not be nearly the disaster for US health care delivery that some pundits are breathlessly-suggesting. In sum — he is very likely to be. . . ineffectual, and largely blunted, by the elite members of his own party. More on that topic, in another post. Smiling widely, on a foggy morning’s walk in. . . .



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