Back around Thanksgiving dinner time 2016(!), Merck (via Idenix) was able to avoid a bifurcated patent trial the federal courts in Delaware, in early December, by filing the below brief. It had been sealed until this morning, when the public, but redacted version became available through PACER's electronic filing desk.
Here is a bit of the brief (a 25 page PDF file), for the complete record:
. . . .Gilead’s reliance on the California trial [before Judge Labson-Freeman, detailed here], in which Gilead presented its validity case first, is inapt. (D.I. 458 at 5-6.) In that case, Gilead was the plaintiff — the role that Idenix has here.
Also, Gilead’s willfulness was not at issue in the California trial. Here, by contrast, that remains part of Idenix’s case-in-chief; the Court denied Gilead’s motion for summary judgment on willfulness, holding that "this is an issue for the jury on the record before [it]. . . ."
Now you know (the most recent prior post on this topic was here). And. . . I'm in the office now, only until Thursday evening, then off -- through the new year (traditional day after new year's day). . . My best -- to one and all. I am having a hard time thinking positive thoughts about 2017, in truth -- with all the deaths, and the idea that we are now undergoing a regime change, of the darker variety, more generally. But I will find my voice anew, in the new year -- of that I am sure. Falling now, as silent as the snows, once again then. . . smile.