There are few IP pharma litigation cases that don’t have greater implications in the healthcare field. But when thinking about standout cases in 2016, one comes front of mind: the end of Gilead Sciences’ fight against Idenix (now Merck) across Europe, which sought to prevent the sale of a revolutionary Hepatitis C treatment, sofosbuvir.
Herbert Smith Freehills and its client Gilead devised a strategy to challenge the validity of the patent in the UK and have the trial expedited such that a favourable decision could be obtained in advance of the German action. In this way the favourable UK decision could be deployed to convince the German court not to grant an injunction and to stay the German infringement proceedings.
This game plan, which had to be executed quickly and effectively in the months leading up to the German action, enabled Gilead to leverage a thorough and respected decision of the UK court (involving disclosure and expert cross-examination) to its advantage across Europe.
For the strategy to work, Gilead had to request extreme expedition of a very complex patent trial, with both scientific and US law issues in dispute. The appeal, which concluded last year, saw Herbert Smith Freehills’ strategy vindicated when the judges upheld the High Court ruling.
Perhaps more importantly, the Herbert Smith Freehills ruling had a positive impact on the parallel proceedings in Australia, Canada and the European Patent Office, all of which were also decided in favour of Gilead. The fact that a trial of this magnitude and complexity was dealt with so quickly was seen as ground breaking by the firm’s peers in the field.