bounced out of court in California's Northern District Court, just a few months back. I foresee much the same outcome here -- especially after this latest filing, from Gilead's legal team.
Here is that memo of law in support of the motion (as a PDF file), and a bit that was not redacted:
. . .[Merck's] problem is that it seeks to limit the claims to a subgenus of effective nucleosides, yet its patents provide no antiviral data or other blaze marks that distinguish between nucleosides that work and those that do not.
[Merck] cannot have it both ways: if the claims are limited in that manner, then the patent must direct the skilled artisan to that narrowed set. [Merck's] main response is to try to use its expert to backfill what the patent lacks, but precedent prohibits that approach. [Merck's] few citations to the patent itself are both legally insufficient and telling: the only supposedly exemplary compounds and data it relies on were not in the original May 2000 application and were added only in May 2001, when [Merck's precursor company] was still just beginning to start testing compounds without yet knowing what was effective. [That precursor company's] patents present nothing more than a research plan that left the real work -- identifying an effective nucleoside like 2’-F down -- to others. The claims, under any construction, are thus invalid as a matter of law. . . .
Now you know. And onward we sail, out into the oncoming cold -- of the frigid shepherd moons' Jovian orbital space -- but not quite so alone, after 2 PM EDT today. . . smile. [Getting ready to watch HRC gracefully lop the GOP nominee's rhetorical head right off, tonight. He so richly deserves it.]