Merck asks SCOTUS for its $200M in Gilead patent dues, never mind the misconduct

Merck says a U.S. judge was wrong to overturn a $200 million jury verdict awarded to the company. (Merck)

Merck & Co. nabbed $200 million in damages after a hepatitis C patent fight with Gilead Sciences but quickly lost the whole shebang thanks to accusations of misconduct and fabricated testimony. And turns out, Merck doesn't want to let that cash go so easily.

The drugmaker is asking the Supreme Court to intervene in the highly publicized case, saying U.S. District Judge Beth Labson Freeman was wrong to overturn the $200 million jury verdict in Merck's favor.

In striking the 2016 verdict, Freeman cited a “pervasive” pattern of misconduct by the company and “fabricated” testimony from a Merck lawyer. An appeals court in April agreed with Freeman’s ruling. But Merck argues the jury heard the same allegations of misconduct in court and still delivered a verdict for Merck. For a court to strike the ruling on an “equitable principle” violates the Seventh Amendment, or the right to a jury trial, the company says. 

The yearslong legal fight stems from a patent dispute on now-blockbuster hep C drugs first developed by Pharmasset and later acquired by Gilead.

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Before Gilead bought the company, Pharmasset was talking to Merck about a partnership. During a 2004 conference call about the potential tie-up, former Merck scientist and patent attorney Philippe Durette learned of a Pharmasset hep C drug structure and later altered a Merck patent application, according to the U.S. Court of Appeals for the Federal Circuit. 

Durette's participation in that conference call violated a "firewall" the companies had set up to ensure participants weren't involved in patent applications, according to the court.

During the legal proceedings in the Gilead patent case, Dr. Durette first denied participating in the phone conference and then admitted he had. He downplayed the knowledge he gained during the call and its influence on the patent application. The jury rewarded Merck anyway, but Freeman didn't buy Durette's argument, and the appeals court agreed with the lower court’s ruling. 

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