Gilead argued that “one having ordinary skill in the art…would not have accepted the assertion that the nucleoside compounds claimed by the asserted patents could treat HCV.” Merck countered that a “skilled artisan would have understood the methods and compounds claimed in the asserted patents would be useful in treating HCV.” The court agreed with Merck and found “that there is enough evidence to create a disputed issue of material fact as to whether a skilled artisan would have ‘accept[ed] the allegations [in the asserted patents] as obviously correct.’”
In addition, Judge Freeman granted Merck’s uncontested motion for summary judgment concerning both direct and indirect infringement. The issue of ultimate liability remains to be determined at trial following consideration of Gilead’s outstanding invalidity defenses.
Gilead Sciences, Inc. v. Merck & Co, Inc., 13-cv-04057-BLF (N.D. Cal., Feb. 1, 2016).