Yet to come in Delaware is the bench portion of the trial — as to Gilead’s OTHER purely “legal” theories (i.e., not factual questions — not questions for the jury to decide, at all) on various defenses of patent invalidity. There are at least three of those that come directly to mind, here — and the able judge will need to rule separately — on those. This is a win for Merck — but just like the $200 million win Merck received (only to later lose it all, and more) this past summer, in California’s Northern District Court (San Jose) — there is still a lot of dust yet to settle, here. Here is the only unsealed verdict form (a four page PDF file, that). In fact, there is also a SEALED verdict form — one which we cannot see. No one can, in fact. It may well cut the other way — in favor of Gilead. But we shall see.
[Of course, should it stand on appeal, and not be subject to remittitur, it would be the largest patent infringement verdict in the history of the US courts — just as we’ve long suggested.] Here’s a bit — from what we can see:
. . . .On Sales of _$25.4_ Billion. . . (through August 2016). . . At a _10_ Per Cent Running Royalty Rate. . . . [equates to] $2.54 Billion. . . .
At the outset, I will remark that a 10 per cent running royalty is at the very high, upper limits of what anyone versed in this area might ever expect — given the Merck patent position, relative to Gilead’s later (alleged) innovations. I suspect that alone will be substantial grounds upon which to reduce the jury’s verdict.
There will also certainly be appeals — on all sides. And who knows what the sealed portion of theose verdict forms hold? None of us. That’s who — save only the judge and the lawyers, in the courtroom. So — do not oversell Gilead in the morning, and do not overly bid Merck up, pre-NYSE open tomorrow. Much yet to come.
We will watch and wait — through this frigid, clear and Super-Moon lit night, now. . . . smile.