Tuesday, November 11, 2014

It Is Increasingly Likely That Gilead v. Merck/Idenix Patent Spat Will Be Resolved In ADR: December 8, 2014 Status

In the federal District Courthouse in Delaware, the patent suit pending over Gilead's Sovaldi patents, and the claimed 10 per cent of revenue royalties, the trial judge has just entered an order, requiring parties and counsel to appear to discuss ADR on the morning of December 8, 2014. Back in August 2014, he tried mediation -- so, either this is an update, or a new approach -- a new process, being encouraged by the able District Court judge.

In sum, ADR is alternativie dispute resolution, by a panel of referees, by mediation, or by a "coach" -- or some other form of negotiated settlement discussion -- entirely outside ot the judicial process. Typically the judge will not (and usually cannot) impose a binding order sending the parties to ADR, but he will very strongly suggest that the two sides ought to resolve their differences in a less formal, and less expensive way -- than litigation. I think it likely that the claim construction dispute will go to an ADR panel of highly qualified patent law experts -- ones that both sides respect; ones that are considered preeminent, neutral and pragmatic lawyers. That's my bet. Here's the order, from Delaware, entered on last Friday:

. . . .A Telephone Conference is set for [12/8/2014] at 10:15 AM before Judge Christopher J. Burke to discuss ADR. Signed by Judge Christopher J. Burke on [11/7/2014]. Associated Cases: 1:14-cv-00109-LPS, 1:14-cv-00846-LPS-CJB(dlk). . .

As ever, we will keep you posted -- but the whole battle here likely turns on how one construes the word "administering" and the word "compound". That's a perhaps $10 billion set of definitions. Wow.

And in closing, please. . . Honor all vets, today -- one and all. They have handed us these freedoms we enjoy -- with their very lives.

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