What The Federal Jury, In Delaware, May Be Told — As To Infringement — Merck Vs. Gilead

To be sure, I’ll have more on this just filed five page letter briefing — for the upcoming December 5, 2016 patent infringement trial date — in the morning, when I am not so sleepy.

For now — do go read it. It accurately sets out the law, and frames the issues nicely. It was written by Gilead’s lawyers, though — so do keep that in mind.

. . . .Following the Court’s direction at the pretrial conference, Gilead submits this proposal regarding what the jury can and should be told regarding infringement. Gilead believes that the issue should be handled by (a) giving the jury a short preliminary instruction that “infringement of the ’597 patent is not an issue you are deciding in this case”; (b) reading the parties’ statement of uncontested facts to the jury as part of the preliminary instructions (D.I. 452, Ex. 1), which includes a neutral statement of what the parties have agreed to; (c) preventing counsel from commenting on or eliciting testimony relating to infringement during trial; and (d) reiterating the same instruction regarding the issues that the jury is deciding (or not deciding) as part of the final instructions. . . .

And all of this matters, because Merck has made what is reliably reputed to be the largest putative patent infringement damages award request in the history of the United States federal courts system — and by a wide margin, too. Not that Kenilworth is likely to receive it — just that the company seeks it. That makes it. . . newsworthy.

Now do sleep soundly this night-time, one and all — like little round river rocks. . . smile. . . .

नमस्ते

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