Merck’s Patent Loss A Cautionary Tale for In-House Attorneys

Merck & Co.'s loss of a $200 million jury verdict for patent infringement shows that companies with internal prosecution staff need to observe strict rules for external communications.

The U.S. Court of Appeals for the Federal Circuit affirmed a district court’s judgment that Merck could not collect the award because of its “unclean hands” in procuring the two patents asserted against Gilead Sciences Inc. Under the unclean-hands doctrine, the lower court was reasonable in wiping out the entire amount because Merck’s patent attorney’s misconduct in 2004 directly affected its litigation position in 2013, the appeals court said.

Merck and Pharmasset ...