There Will Be No "Enhanced, Or Special" Damages -- Above The $2.54 Billion Already Won By Merck: Del. US Dist. Ct. [Dictated; But Not Read.]

The able Judge Leonard Stark's 18 page memorandum opinion has just been published in a redacted (for trade secrets, primarily) form, in the federal district court in Delaware. The opinion recites that it is undisputed that this Hep C cure (95 per cent effective) has already saved over one million lives.

And, as a seminal post-trial opinion -- in the largest damages patent case ever awarded by a US jury (and likely in the history of the planet), it is highly newsworthy -- and a must read, for all US lawyers (and scientists) interested in how blockbuster drug patent law is evolving. Truly you must read it -- read it all. I am tasked with important family matters this long weekend, so I will not offer much additional explanation or analysis. [However, parts of this opinion, and each subsequent one, are very likely to be appealed, given the unfathomably large stakes.]

. . . .While the Court does not, of course, "bless" the type of underhanded corporate piracy the jury implicitly found Gilead committed, given that the result of that misconduct is a cure for a potentially-fatal disease afflicting millions of people around the world, and given that the jury's damages award is already the largest damages verdict ever returned in a patent trial (compensating Idenix for what it lost), additional sanction is just not warranted. . . .

The Court -- and, more generally, the patent system -- wants to encourage, and not deter, innovation on existing ideas, and exploration and investment (including in the form of massive expenditures) in related inventions that may reasonably appear to be outside the scope of another patentee's claims. As the Supreme Court reiterated in Halo, "patent law reflects a careful balance between the need to promote innovation through patent protection, and the importance of facilitating the imitation and refinement through imitation that are necessary to invention itself and the very lifeblood of a competitive economy." 136 S. Ct. at 1935 (internal quotation marks omitted); see also State Indus., Inc. v. A.O. Smith Co~p., 751F.2d1226, 1236 (Fed. Cir. 1985) (noting that patent system is intended to encourage innovators to develop alternatives to "competitor's products, even when they are patented, thus bringing a steady flow of innovations to the marketplace"). Here, without both parties' contributions, humanity may well have been I deprived of a cure for HCV. Under the totality of circumstances, society's interest in deterrence of willful patent infringement does not justify enhancing damages here. . . . .

Idenix's motion will be denied in all respects except with respect to Idenix's request for prejudgment interest to be calculated using the prime interest rate. . . .

Now you know. Additional orders will appear, related to whether Gilead's motions to toss the jury's verdict altogether, will be granted -- in the coming weeks.

[This post was auto-generated, by an experimental algorithm, invented by the Condor. It was not reviewed for content or context by any human. If it is in error, it will be corrected, rewritten or retracted in due course. Copy-left 2017.] It's been a wild ride. Travel light.

नमस्ते