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Already the largest-ever US patent verdict, Merck award could grow

In mid-December, a federal jury found that Gilead Sciences, Inc., had infringed upon patents owned by Merck's Idenix Pharmaceuticals unit. The patents were for two hepatitis C drugs known as Harvoni and Sovaldi, and the jury found that Gilead owed Idenix a percentage of the royalties it earned from those drugs since Idenix's patent was upheld in 2014.

The jury award was $2.5 billion, the largest jury award ever in a U.S. patent infringement case. That $2.5 billion, however, could easily be tripled because the jury found the infringement to be willful.

The $2.5 billion the jury awarded was for Idenix's actual damages. Willfulness is all that is required for a federal judge to increase that award in an effort to punish the wrongdoing. He could go as high as $7.6 billion.

Of course, the federal judge could choose a much lower multiplier for the punitive damages, considering the enormous award. He could also determine that the jury was wrong about the willful nature of the infringement and grant no punitive damages at all.

Punitive damages are meant to punish and deter truly egregious behavior

According to law.com, the parties' briefs about the extent of Gilead's willfulness are heavily redacted, so all we really know is that Gilead may have known of Merck's patent claims before it began selling Harvoni and Sovaldi. The judge will need to consider just how egregious Gilead's infringement was.

That said, Merck is no stranger to allegations of wrongdoing itself. Last year a federal judge overturned a $200 million award in a separate case against Gilead. The judge found that Merck had engaged in a pattern of unethical behavior including lying under oath. Merck has appealed.

In the knock-down, drag-out world of Big Pharma, the line between aggressive business moves and patent infringement may not always be clear. If your company needs to defend its intellectual property rights, you need an experienced attorney who knows where that line is.

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