Serving as co-lead plaintiff's counsel in Gilead Sciences Inc. v. Merck & Co., regarding Gilead's multibillion-dollar Hepatitis C drugs Sovaldi and Harvoni, Brooks and Singer reduced a potential $2 billion verdict for Merck to a $200 million jury award, but they didn't stop there. They converted the award to a post-trial wipeout of the entire verdict and obtained $14 million in attorney's fees for their client Gilead.
The San Diego-based principals are no strangers to a challenge. Brooks and Singer, head of the firm's life sciences practice, rally time and again to deliver big wins for their clients. Their ability to cultivate a global litigation strategy and turn losses into wins is perfectly evidenced by their eventual toppling of the $2 billion verdict — what would have been the single largest patent damages award in U.S. history.
At stake in the case were Gilead's groundbreaking Hepatitis C drugs — two of the highest-selling drugs in the world — that mark the first time that a cure for a virus has been developed since the polio vaccine.
Fish client Gilead filed suit in 2013 after Merck requested that Gilead license two patents. Gilead sought declaratory judgment that Merck's patents were invalid and its products did not infringe. Merck fired back, alleging infringement and demanding $2 billion in damages. A jury sided with Merck in March 2016. However, in the trial's damages phase, Brooks and Singer convinced the jury to award Merck less than 1/10th of their demand. Merck was awarded only $200 million. Brooks and Singer were just getting started.
In June 2016, Brooks and Singer delivered the stunning argument that Merck's in-house lawyer used confidential information — from private licensing negotiations in 2004 during the drug-development phase — to draft the patent claims at issue. A California federal judge found that Merck forfeited its right to assert its Hepatitis C drug patents against Gilead due to having "unclean hands." The court ultimately wiped out the $200 million damages award after holding the unethical behavior was compounded when Merck's outside counsel attempted to cover it up by sponsoring false testimony.
In July, Merck was ordered to pay Gilead $14 million in attorney's fees, concluding the fees were reasonable "based on the amount at stake in this case, the complexity of the issues, and the results Fish has achieved for Gilead."
The Recorder's Game Changer award was announced earlier this month. All award winners will be recognized at an event at the Hilton San Francisco on Thursday, Nov. 16.
Fish & Richardson is a global patent prosecution, intellectual property litigation, and commercial litigation law firm with more than 400 attorneys and technology specialists in the U.S. and Europe. Our success is rooted in our creative and inclusive culture, which values the diversity of people, experiences, and perspectives. Fish is the No. 1 U.S. patent litigation firm, handling nearly three times as many cases as its nearest competitor; a powerhouse patent prosecution firm; a top-tier trademark and copyright firm; and the No. 1 firm at the Patent Trial and Appeal Board, with more cases than any other firm. Since 1878, Fish attorneys have been winning cases worth billions in controversy – often by making new law – for the world's most innovative and influential technology leaders. For more information, visit https://www.fr.com or follow us at @FishRichardson.
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