Tuesday, June 21, 2016

While Gilead Seeks Its Attorneys' Fees Out West, Discovery Disputes In Delaware Elevated From Magistrate, To The Trial Judge

Now that the federal District Court, Northern California Gilead-pays-Merck $200 million patent infringement verdict has been wiped out, the lawyers for Gilead out west (as I previously said they would) are busily filing briefs -- to seek perhaps as much as $18 million in legal fees from Merck, the money Gilead would say it spent defending itself against Merck's "inequitable" patent infringement claims. By the end of next month those briefs, and counter briefs, will be filed.

Meanwhile, in Delaware federal District Court, the other Merck/Idenix v. Gilead sofosbuvir patent suit is deeply mired in the muck of a discovery dispute. [Backgrounder -- on why Idenix's name appears there, in the Delaware version of this patent litigation.] So bogged down, in fact, that the able trial judge has ordered the Magistrate to sieze control -- and, on a short time-table, resolve it. But even that process has now reached loggerheads, it seems.

Whatever the issue in the for-now sealed letter(s), the very capable Judge Christopher Burke, a trial judge, has ordered a phone call tomorrow, with him, in person. In this role, he's a lumberjack, looking to break the log-jam with a pry-bar and sharp hook, if need be.

I suspect that, given the rulings on the West Coast, the able judge has made it clear that those rulings will guide his views on this case, as well. And he is likely looking to advance the case to trial rapidly. To clear it off his docket, actually. Here is his order of this morning, in full:

. . . .ORAL ORDER Setting Teleconference:

The Court has reviewed Defendants June 20, 2016 letter regarding a discovery dispute. (D.I. 324 in Civil Action No. 13-1987-LPS, D.I. 273 in Civil Action No. 14-109-LPS, D.I. 313 in Civil Action No. 14-846-LPS).

It hereby ORDERS that the procedures for resolving a discovery dispute set out in paragraph 3(g) of the Scheduling Order will be altered as follows with regard to this dispute:

(1) The parties shall file a joint "Motion for Teleconference to Resolve Discovery Dispute," the text of which can be found in the "Forms" tab of Judge Burke's page on the District Court's website.

(2) A discovery dispute teleconference will be held on Wednesday, 6/22/2016 at 09:30 AM before Judge Christopher J. Burke.

(3) Any party opposing the application for relief may file a letter, not to exceed three (3) pages, outlining that party(s) reasons for its opposition by 5:00 pm today.

Ordered by Judge Christopher J. Burke on 6/21/2016. . . .

Now you know. But I would expect that this will, like the one out West, settle, with Merck paying at least some of Gilead's legal fees -- and no net recovery for Kenilworth. Onward, on a flawless Tuesday morning -- walking in. Smile. . . .

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