. . . .Georgia-Pacific factor 5 (the commercial relationship between the licensor and licensee, such as, whether they are competitors in the same territory in the same line of business) supports an upward adjustment to the jury’s 10% rate. At the time of the hypothetical negotiation in 2013, Idenix did not have a product on the market that competed with Gilead’s Sovaldi® and Harvoni®, and Idenix was not affiliated with any other companies.
But as of January 2017, Idenix had become a subsidiary of Merck, which was selling (and continues to sell) Zepatier®, a product that directly competes with Sovaldi® and Harvoni®. (Id. at ¶¶ 30-36.) Thus, granting a license to Gilead would result in immediate lost sales and/or market share of Merck’s competing product. (Id. at ¶ 30.) This factor supports a royalty rate substantially higher than 10%. Indeed, the rate proposed by Idenix is conservative as it would not come close to recouping the potential losses to Merck’s product. . . .
We shall see. I expect this will be reduced, not enhanced -- or it will settle on confidential terms. Onward, to a solid Saturday workout. Smile.