Saturday, January 3, 2015

If Nothing Else Is Resolved In 2015, Merck's Sovaldi® Patent Claims Likely To Go To ADR In Delaware

There is quite a bit afoot, globally, in the Gilead v. Merck/Idenix/Isis sofosbuvir patent spats.

However, if there isn't a settlement or other resolution before December 14, 2015 -- a little under a year from now -- the very able federal District Court Magistrate Judge Christopher J. Burke, sitting in Wilmington, Delaware has ordered the beginning of ADR processes. [Prior international litigation backgrounder here.]

The age old idea here is to let each side know that it ought to find a solution both can live with, by agreement, prior to then, or they will run the risk that a panel of arbitrators, or a mediator, will impose one upon them. This is, in my estimation, a smoke signal from the court that it feels the case ought to be settled -- and settled soon. Here's a bit of that order, entered on New Year's Eve 2014:

. . . .IT IS ORDERED that a teleconference has been scheduled for Monday, December 14, 2015, at 11:00 a.m. with Magistrate Judge Burke to discuss alternative dispute resolutions (“ADR”). . . .

I think the central point of discussion will be whether Gilead might be willing to pay perhaps one half of one per cent in royalties to Merck -- to "buy peace". That would be a 20 fold discount (or a 95 per cent decrease, if you prefer), from Merck's initial 10 per cent of all sales demand. If it settles prior to December 2015, my guess is that it will settle at a rate below 1.5 per cent of sales. Just my guess.

Onward, on a snowy but beautiful Saturday morning, here.

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