US Supreme Court refuses to hear appeal against ‘unclean hands’ decision
The US Supreme Court has refused to hear an appeal against a ruling that American pharmaceutical firm Merck & Co cannot collect $200 million in damages due to its misconduct during a trial.
Merck’s petition for certiorari was denied on Monday, January 7.
The company sued biotechnology rival Gilead Sciences in 2013, claiming that Gilead’s hepatitis C drugs, Harvoni (ledipasvir/sofosbuvir) and Sovaldi (sofosbuvir), infringed two of its patents (US numbers 7,105,499 and 8,481,712).
Merck initially won $200 million in damages in 2016, but the ruling and the award of damages were overturned by the US District Court for the Northern District of California after it found that Merck had intentionally misled the court.
After the initial district court ruling in favour of Merck, Gilead hit back with claims that Phillip Durette, a former scientist at Merck, had lied under oath in his testimony and had misled the jury.
Judge Beth Freeman found that “Durette’s lying at his deposition, recanting that testimony at trial without proper prior notice to Gilead, and further untruthful testimony at trial all support the court’s conclusion that Merck did intend to deceive Gilead and the court”.
As a result, Freeman ruled that Merck would “take nothing from this suit”. Merck’s misconduct in the case justified a finding of unclean hands, with the company forfeiting its right to litigate the action against Gilead, the court found.
The district court’s decision was affirmed by the US Court of Appeals for the Federal Circuit in April 2018. In the ruling, the Federal Circuit said that the district court’s finding was adequately supported by evidence and justifies the “equitable determination of unclean hands as a defence to enforcement in this case”.
Merck petitioned for the Supreme Court to hear the case in September 2018. In the filing, Merck put forward several arguments, including that the district and appeals courts’ decisions contradicted the jury’s finding. The Federal Circuit’s ruling “effectively allows courts to retry the matter to themselves,” the petition said.
LSIPR has contacted Merck and Gilead for comment.
Did you enjoy reading this story? Sign up to our free daily newsletters and get stories sent like this straight to your inbox.
