Photographer: David Paul Morris/Bloomberg

Gilead Judge Re-Opens Case Amid Claim Merck Scientist Lied

  • Witness is accused of deceiving jury about origins of patent
  • Merck was awarded $200 million in fight over hepatatis C cure

A federal judge re-opened Merck & Co.’s patent case against Gilead Sciences Inc. over a hepatitis C drug amid claims that an ex-Merck scientist lied to a jury that awarded the company $200 million in damages.

U.S. District Judge Beth Labson Freeman said Friday she’s “outraged” about an allegation the now-retired scientist deceived jurors with testimony that he was responsible for early breakthroughs on compounds that led to a cure for the liver disease. Gilead’s development of its Sovaldi and Harvoni medicines helped it become the world’s largest biotechnology firm by market value.

While the scientist, Phil Durette, said a patent he obtained for Merck was the result of his own work, Gilead said evidence shows he actually relied on an earlier patent developed by Pharmasset Inc., before that company was acquired by Gilead in 2011.

“It’s the sad truth that people lie in court every day,” Labson Freeman said at a hearing Friday in San Jose, California. “I am outraged by what I think is untruthful testimony.”

She also called the allegations extreme. “It may be the case, it may not,” the judge said.

‘Not Merck’s Conduct’

Bruce Genderson, a lawyer for Merck, reminded the judge it was Gilead that called Durette to the stand and that his testimony was “not Merck’s conduct.”

“I respectfully disagree that his testimony wasn’t truthful,” Genderson said.

Durette declined to comment Friday when asked by phone about the accuracy of his testimony.

At trial, Gilead and Merck each tried to show the other was claiming credit for scientific advances that wasn’t due. Over two weeks, a parade of doctors and scientists for Gilead, Pharmasset and Merck and its partner Ionis Pharmaceuticals Inc. testified about their roles in the patent process.

Gilead contends that in 2004, at a point when Merck was exploring a take-over of Pharmasset, Durette participated in a phone call in which the secret details of Pharmasset’s compound were discussed. In a pretrial deposition he gave “unequivocal testimony” that he wasn’t on the call, Gilead said. He went on to recant his statement in court when he told the jury he “forgot” he was on the phone call and he had “overconcluded.”

Personal Notes

Merck claims Durette never intentionally misled the jury, later acknowledging that he’d been on the call once his personal notes confirmed it.

The judge gave both sides until Monday to file more arguments over Durette’s testimony.

The jury, after siding with Merck on all the patent claims, on March 24 rejected Merck’s bid for a 10 percent royalty on the $20.7 billion revenue that Gilead’s hepatitis C drugs generated from 2013 through 2015. Merck only got a tenth of what it sought.

The case is Gilead Sciences Inc. v. Merck & Co., 13-cv-04057, U.S. District Court, Northern District of California (San Jose).

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