US court upholds verdict voiding MSD's claim to $200m from Gilead in patent dispute

MSD has taken a legal hit after a US appeals court upheld a ruling that the pharma giant had illicitly obtained patent rights for the treatment of hepatitis C, voiding its claim to an infringement verdict against Gilead to the tune of $200 million.

The ruling was originally made in June 2016, specifying that MSD had engaged in misconduct which rendered its patents unenforceable. It threw out a verdict earlier in the year which awarded the $200 million to MSD after finding that Gilead’s game-changing hepatitis therapies Sovaldi and Harvoni infringed two of its patents.

The June 2016 ruling asserted that MSD had engaged in a number of illicit practices, including the lying of one of its in-house lawyers while under oath and the company’s use of confidential information obtained in 2004 in the application of one of the patents, while discussing a possible partnership with Pharmasset, a company Gilead would go on to buy in 2011. MSD appealed, arguing that there was no "deliberately planned and carefully executed scheme by Merck to defraud or deceive."

The upheld ruling by the US Court of Appeals for the Federal Circuit obviously split opinion between the two camps involved, with Gilead calling it "justified and well supported by the record", while MSD argued that it "does not reflect the facts of the case".     

MSD and Gilead have similarly clashed earlier this year, when a federal judge in February overturned what was at the time the US’ biggest patent case, voiding a jury verdict demanding Gilead pay $2.54 billion for breaching another hepatitis C drug-related patent.

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