Gilead Wins Major Federal Circuit Ruling in Multi-Billion Dollar Patent Battle

October.30.2019

Preserving a lower court ruling setting aside the largest patent verdict in history, an Orrick appellate team today secured an important win in the Federal Circuit for Gilead in its long running patent dispute with Merck subsidiary Idenix Pharmaceuticals. The Federal Circuit sided with our arguments in rejecting Idenix’s bid to revive a $2.5 billion judgment, agreeing with Gilead that Idenix’s patent is invalid.  The win further supports Gilead’s long-standing position that its blockbuster Hepatitis C drugs Sovaldi and Harvoni do not infringe any Idenix patents.

Orrick began working on the case just after the jury verdict, teaming up with lawyers from Fish & Richardson and Irell & Manella to convince the trial court judge to knock out the record-breaking verdict.  Orrick then took the lead defending the win on appeal. 

In today’s ruling, the Federal Circuit likened Idenix’s patent to sending researchers “searching for a needle in a haystack,” instead of telling scientists how to make an effective Hepatitis C drug. The panel agreed with our team’s arguments on multiple grounds, affirming the trial court’s finding that the patent is invalid for lack of enablement, and then overturning the trial court to find the patent invalid on a second independent ground, lack of adequate written description.  Partner Josh Rosenkranz, co-head of the firm’s Supreme Court and Appellate Practice, argued the case for Gilead in the Federal Circuit.

“This is just the latest in an unbroken chain of tribunals that have concluded that Gilead invented the cure for HCV,” Josh said in a statement. “Not Merck and Idenix. Seven countries have rejected Merck’s and Idenix’s efforts to claim the credit. In the United States, the Patent Office and every single judge to consider the issue has rejected Merck’s and Idenix’s efforts. That’s two district judges, and seven appellate judges, in three different appeals.”

“The Federal Circuit broke no new ground when it declared that Idenix cannot block an entire field of study by asserting patent rights over billions of possible drug candidates without giving the public any sense of which one would work,” Josh added.

In addition to Josh, the Orrick team included partners Eric Shumsky and Brian Goldman and associates Ned Hirschfeld and Elizabeth Moulton. Orrick also collaborated with Fish & Richardson on the appeal.