LA TIMES: Judge Finds Merck Lied In Patent Trial, Overturns $200-Million Verdict

Jul 30, 2016 by

These days, the public doesn’t have a very high opinion of drug manufacturers. And it seems that there may now be yet another reason to be angry: federal Judge Beth Labson Freeman of San Jose has found that Merck & Co. lied to a business partner and to the court itself (I’m sure no one is surprised). Just this week, Judge Freeman threw out a patent infringement judgment Merck had won against Gilead Sciences, and overturned a $200-million jury award in the case. Merck says it will appeal the judge’s ruling.

This is a big deal for Merck and involves one of the most profitable drugs on the market today — the Sovaldi treatment (made by Gilead) for the hepatitis C virus. Merck’s misconduct includes lying, misusing Pharmasset’s confdential information, and lying under oath at deposition and trial. Well done guys. Honestly, why do people still trust these guys with their lives, believing they only want what is best for the consumer? How many more times do they have to get caught before people wake up?

In March, Merck won a $200-million jury award, after accusing Gilead of infringing its patents for Sovaldi. In response, Gilead claimed the patents were invalid and then accused Merck of misconduct and the patent defense of “unclean hands”(when you don’t deserve a profitable judgement because you’ve acted unethically). Once the judge learned what had happened, she lowered the boom on Merck, finding them guilty of “numerous unconscionable acts.”

From the LA Times article:

“Most stemmed from Merck’s underhanded interactions with Sovaldi’s inventor, Pharmasset, which was acquired by Gilead for $11 billion. That deal proved to be a bargain, as Sovaldi and its related treatment Harvoni have brought Gilead more than $20 billion in sales since 2013. The drugs are so effective that Gilead’s stratospheric pricing for them has become Exhibit A in the national controversy over the cost of drugs.”

Recent video of Merck exec trolling my page this Spring:

Most of the judge’s anger was directed at retired Merck patent attorney Phillippe Durette, who was working on patents for antiviral drugs during the period that Merck was trying to do a deal with Pharmasset. And here’s the breakdown of what happened:

  • Merck signed a nondisclosure agreement (NDA) with Pharmasset, to not use the latter’s secret information for any purpose other than to decide whether to pursue the relationship.
  • Pharmasset then turned over specific info- including the structure of PSI-6130 (which would become Sovaldi) to a single Merck scientist who was to be “firewalled” — meaning he couldn’t discuss it with anyone in Merck’s own drug development loop.
  • During a March 2014 conference call between Merck and Pharmaasset officials, regarding a possible business deal, Pharmasset was willing to talk about the structure of PSI-6130 on the call, because they were led to believe everyone on the call was firewalled.
  • But Durette, who wasn’t firewalled, was on the call and used what he heard to benefit Merck.

THAT’S what upset Judge Freeman. And while Durette shouldn’t have been allowed on the call, and should certainly been excluded from other related patent items, he instead rewrote Merck’s earlier patent claims making them appear to apply to Pharmasset’s upcoming release of PSI-6130.  Merck would even go so far as to threaten Pharmasset with a patent lawsuit over the drug in 2011.


Sadly, there’s more. In a deposition, Durette repeatedly denied having been on the call. He only pleaded to a faulty memory when he was confronted with notes that had been taken, during the call, by a Pharmasset employee.


More from the article:

“Freeman didn’t buy it. “It is overwhelmingly clear…,” she ruled, “that Dr. Durette sought at every turn to create the false impression that Merck’s conduct was aboveboard.” She blamed Merck, which she said “sponsored and encouraged” his conduct, then sought to minimize its importance by attributing the fiasco to “the failed memory of a retired employee.”

This is like a terrible soap opera, but it matters more because these people- people we can’t trust even in the slightest- are supposed to be making our lives better “through science”. They are supposed to care about finding cures and healing people when all they really care about is the bottom line. It would be funny if it wasn’t true.

Source: LA Times

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