California Verdicts

Plaintiff(s):

Gilead Sciences, Inc.

Plaintiff Attorney(s):

Juanita R. Brooks;
Fish & Richardson P.C.;
San Diego,
CA,
for
Gilead Sciences, Inc. ■ Jonathan E. Singer;
Fish & Richardson P.C.;
San Diego,
CA,
for
Gilead Sciences, Inc. ■ John M. Farrell;
Fish & Richardson P.C.;
Redwood City,
CA,
for
Gilead Sciences, Inc. ■ Martina Tyreus Hufnal;
Fish & Richardson;
Wilmington,
DE,
for
Gilead Sciences, Inc.

Defendant(s):

Merck & Co., Inc., 

Isis Pharmaceuticals, Inc., 

Merck Sharp and Dohme Corp.

Defense Attorney(s):

Bruce R. Genderson;
Williams & Connolly LLP;
Washington,
DC,
for
Merck & Co., Inc., Isis Pharmaceuticals, Inc., Merck Sharp and Dohme Corp. ■ Stephen S. Rabinowitz;
Hughes Hubbard & Reed LLP;
New York,
NY,
for
Merck & Co., Inc., Isis Pharmaceuticals, Inc., Merck Sharp and Dohme Corp.

On June 7, 2013, plaintiff Gilead Sciences Inc., a biotechnology firm based in Foster City, announced that it had been authorized by the U.S. Food and Drug Administration to manufacture hepatitis C drugs containing a compound known as sofosbuvir. Merck & Co., a pharmaceutical company, claimed that Gilead owed it royalties from the drugs Sovaldi and Harvoni because the scientific foundation for sofosbuvir was created in Merck & Co.’s internal laboratories. However, Merck & Co. claimed that compound was developed in its labs by an entity known as Pharmasset Inc., which was acquired by Gilead Sciences in 2011. Merck & Co. claimed the compound was protected by patent numbers 7,105,499 and 8,481,712, which it held with Isis Pharmaceuticals. Each entity claimed responsibility for the scientific breakthroughs that resulted in the creation of the drugs. Gilead Sciences sued Merck & Co. Inc., Merck Sharp and Dohme Corp., Isis Pharmaceuticals Inc., seeking a declaratory judgment of non-infringement and invalidation of Merck and Isis’ claimed patents. Merck & Co., Merck Sharp and Dohme, and Isis Pharmaceuticals filed a counter-suit against Gilead Sciences, alleging that Gilead Sciences had infringed the ‘499 and ‘712 patents.

Gilead Sciences sought declaratory judgments of non-infringement and invalidation of ‘499 and ‘712 patents. It claimed that it had not violated Merck & Co.’s and Isis Pharmaceuticals’ two patents on the compound, and sought a ruling that the ‘712 and ‘499 patents were invalid. Gilead Sciences also sought a declaration enjoining the defendants from further infringement litigation. As to the counter-claim, Merck & Co. sought 10-percent of the royalties earned on the profits from the drugs Harvoni and Sovaldi, which amounted to as much as $20 billion by Dec. 21, 2015.

The jury found that Gilead Sciences was unable to prove that the ‘499 and ‘712 patents were invalid. As to the counter-claims, the jury found that Merck & Co., Merck Sharp and Dohme, and Isis Pharmaceuticals proved that they are entitled to a reasonable royalty from sales of Gilead Sciences’ drugs Harvoni and Sovaldi. It determined that the calculated royalties owed to Merck & Co., Merck Sharp and Dohme, and Isis Pharmaceuticals totaled $200 million.

Judge:

Beth Labson Freeman

Trial Length:

2
 weeks

Jury Composition:

4 male/ 4 female

Post Trial:

Judge Beth Labson Freeman determined that there was pervasive litigation misconduct and improper business practices on the part of Merck & Co. She also determined that Gilead Sciences was entitled to attorneys fees, which was yet to be determined. Merck & Co. is appealing the decision.

This report is based on information that was gleaned from court documents and an article published by Bloomberg L.P., as well as from interviews from plaintiff’s and defense counsel.