Federal Circuit Affirms District Court Decision Finding Unclean Hands

Author:Ms Ashley Winkler
Profession:Finnegan, Henderson, Farabow, Garrett & Dunner, LLP

In Gilead Sciences, Inc. v. Merck & Co., the Federal Circuit affirmed the district court's decision finding that Merck's pre-litigation business misconduct and litigation misconduct barred it from asserting two patents against Gilead under the unclean hands doctrine. The district court decision vacated a $200 million jury award for infringement of Merck's patents.

The district court found that Dr. Durette, an inventor and patent agent for Merck, had participated in a conference call with Gildead's predecessor-in-interest related to the sofosbuvir compound.  In violation of a confidentiality agreement, Dr. Durette then used information from that call to narrow the claims of a pending application to target a specific group of compounds, including sofosbuvir.  Ultimately this application resulted in two patents, and Merck sued Gilead for infringement.  Although Dr. Durette...

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