Sunday, November 2, 2014

Gilead's Sovaldi® Patent Spat? Merck's Side Of The Story, Now

I've offerd a few earlier posts (here, too) -- setting out Gilead's side of this perhaps $10 billion argument, over Merck's demand that Gilead pay 10 per cent of all Sovaldi® revenue to Whitehouse Station.

So on this quiet Sunday morning, I'll offer Merck's view on these matters (and by way of incorporation, that of Idenix, Merck's newly-acquired subsidiary). Here is the full brief (a 17 page PDF file) Merck filed just last week, on how we ought to construe two words, in the disputed patents. Take a look:

. . . .Merck’s proposed constructions are grounded in the plain meaning of the claim language, the specifications of the patents-in-suit (i.e., intrinsic evidence), and first principles of claim construction as set forth by the Federal Circuit. For example, Merck’s proposed construction of “administering” is taken verbatim from the specification, which expressly defines the meaning of this term. Merck’s proposed construction of “compound” is grounded in the plain and ordinary meaning of the term, the usage of that term in the specifications of the patents-in-suit, and the meaning that other courts have construed the term “compound” to have, as discussed below.

In contrast, Gilead Sciences, Inc. (“Gilead”) asks the Court to “construe” the claim terms “administering” and “compound” in a manner that would effectively re-write the claims to include multiple new limitations that have no basis whatsoever in the meaning of those terms, either in general or as used in the specifications of the patents-in-suit. With regard to the claim term “administering,” Gilead asks the Court to negate the patents’ express definition of the term “administering” by adding no fewer than 24 extra words to that definition. With regard to the claim term “compound,” Gilead’s proposed construction departs from the plain and ordinary meaning of this term and conflicts with the way this term is used in the specifications of the patents-in-suit, and as such contravenes first principles of claim construction. . . .

I must note, as I close, that any argument which stems from Gilead using "too many words" (see bolded bit, above) -- to clarify and define its construction of the terms in dispute. . . strikes me as just a little. . . silly.

Afterall, I can think of one word -- "love" -- about which thousands upon thousands of books have been written, precisely to define the authors' intent -- in using and construing the word. Similarly it might be argued, "administering" and "compound" are words which are not self-defining. So it is not particularly illuminating to tell a federal District (trial) court judge in San Jose, California that Gilead uses "too many words" to reach its definition. At least, in my opinion.

In fact, when I say "I love you". . . you might need to ask me: do I mean Plato's version, or do I mean Beethoven's "Immortal Beloved" version -- or some other, entirely? That is what this suit is about, by analogy. Now go enjoy your sunny Sunday mornings, one and all.

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