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Fish & Richardson won a motion for Judgment as a Matter of Law (JMOL) that reversed a $2.5 billion jury verdict against its client Gilead Sciences Inc. in federal court in Delaware. On February 16, 2018, U.S. District Court Judge Leonard P. Stark held that Idenix Pharmaceutical’s ‘597 patent for an element of a hepatitis C treatment was invalid for lack of enablement. The ruling completely wipes out the December 2016 jury verdict against Gilead.

Fish has been representing Gilead for over five years in its worldwide, complex patent battle with Merck and Idenix (now owned by Merck) over Gilead’s two blockbuster hepatitis C drugs, Sovaldi® and Harvoni®. Over the past two years, Fish has won two important cases involving Gilead’s hepatitis C drugs – the reversal of a $200 million jury verdict due to Merck’s unclean hands and an appellate decision in Storer v. Clark affirming a PTAB ruling that Gilead invented its hepatitis C treatment before Idenix.

Idenix sued Gilead in Massachusetts in December 2013, alleging that Gilead infringed Idenix’s ‘597 patent. At trial, Fish had argued that the ‘597 patent was invalid because its descriptions were inadequate and failed both to describe the claimed invention and to enable the practice of the alleged invention. The jury returned a verdict against Gilead.

In overturning the verdict, Fish’s trial team ­– led by Frank Scherkenbach, Juanita Brooks, Jon Singer and Chad Shear – presented volumes of evidence to Judge Stark on the enablement issue. In granting JMOL, Judge Stark found that the patent didn’t lead people of ordinary skill to the desired result without serious experimentation.

Fish principals Jonathan Singer, Joseph Warden, Doug McCann, and Frank Scherkenbach argued the JMOL; Singer argued the portion of the JMOL relevant to enablement. The Gilead trial team also included Fish principals Martina Tyreus Hufnal and Corrin Drakulich, and associates Tasha Francis and Jenny Shmuel. Gilead’s in-house counsel, Lorie Ann Morgan, Patricia Thayer and Andrea Hutchison and attorneys Jason Sheasby and Gary Frischling from Irell & Manella provided support on the post-trial briefing as well. The case is Idenix Pharmaceuticals LLC et al. v. Gilead Sciences Inc.

This is not the first time that Fish has reversed a billion-dollar jury verdict. In September 2008, Fish reversed what was then the largest patent infringement verdict in history – a $1.538 billion jury verdict against client Microsoft in its long-term battle with Alcatel-Lucent.

Read more about the Fish & Richardson team in The American Lawyer in “Litigator of the Week: Roaring Back From the Largest-Ever Patent Verdict.”

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