Hmmm. Looks Like The $2.54 Billion Verdict Against Gilead May Be Reduced, Or Tossed Altogether...

Post trial briefing in Delaware's federal District Courts continues apace with two overnight filings, in letter form. Oral arguments are slated for Sept. 8.

I've long conjectured that the full patent infringement damages verdict may not stand. One of dozens of backgrounders, here. [Use the search box -- "Idenix" for more.]

Here is a bit, from Gilead's letter -- but do go read all both (seven-, and eight- pagers, respectively):

. . . .Both Enzo cases find the claims lacked enablement as a matter of law despite the patentee’s expert testimony. That testimony in Enzo I-II was insufficient because it did not dispute the facts that (a) an unduly large number of polynucleotides met the claims’ structural limitation, and (b) a skilled artisan must make and test each one to determine whether it fell within the claims functional limitations. Idenix’s evidence has the same deficiencies. For example, Idenix’s Dr. Meier claims that skilled artisans knew how to synthesize 2’-methyl up, but, just as in Enzo, Idenix’s experts relied on synthesis and screening as the way of finding active candidates. . . .

And a "byte", from Merck/Idenix:

. . .Enzo compared a combination of four undisputed factors to Wyeth & Cordis Corp. v. Abbott Labs., 720 F.3d 1380 (Fed. Cir. 2013), to hold Enzo’s claims non-enabled: (1) Enzo’s claims were “far broader than in Wyeth,” (2) the patent disclosures were “far less,” and (3) the field was “even more unpredictable,” which meant that (4) “the trial-and-error process would have taken even longer.” Gen-Probe at *7; Abbott, at 17-18. Here, by contrast, the jury received extensive evidence demonstrating that: (1) the ʼ597 claims are clearly bounded, (2) the ʼ597 specification provides detailed guidance, (3) the field of using nucleosides to treat viruses was well established, and (4) a POSA would not need to unduly experiment to practice the full scope of the claims. That evidence took the form of expert testimony from both sides as well as other evidence from Gilead, including Pharmasset’s own recognition of the ʼ597 patent disclosures. . . .

We shall, as ever, see.



Onward -- out of office all day; off-grid with clients. Do be safe and well. See ya' manaña. . . .

नमस्ते