Bonum Certa Men Certa

Massive Discovery Misconduct and New Litigation Misconduct Show That the Patent World is Not Always About Justice

We have got a winner



Summary: Manipulation of the legal system, or arm-wrestling the law in order to get one's way, still a problem for the credibility of today's patent system (rife/riddled with misconduct)

EVERY now and then we document or pile/assemble together examples of misbehaviour, not necessarily at patent offices (EPO, USPTO and so on) but in courts and law firms. There's no lack of examples. The system is far from perfect, transparency can always help, and pointing out flaws can help correct these.

A few days ago "massive discovery misconduct" was reported in a case where the "plaintiff's severed litigation misconduct was exceptional."

"Following plaintiff's post-Markman stipulation of dismissal and a bench trial finding inequitable conduct," Docket Navigator summarised, "the court granted defendant's motion for attorney fees under 35 U.S.C. ۤ 285 because plaintiff's severed litigation misconduct was exceptional."

Well, patents are, with few exceptions, not used amicably. And those who use them for hostile purposes are not exactly likely to act in good faith.

Another example of misconduct was covered a few days ago by David Hricik, who focuses on ethical matters. "In addition to this evidence," he said, "the district judge heard evidence of various litigation misconduct..."

Here are the details:

Last month, the Federal Circuit held oral argument in an appeal, styled Gilead Sciences, Inc. v. Merck & Co., Inc. (Appeal Nos. 16-2302 & -2615) from a judge’s decision which held a patent unenforceable — for unclean hands — after a jury returned a verdict of $200 million. A more detailed write up is here which includes a link to the oral argument.

Boiled down, in a bench trial after the verdict, the judge heard evidence that Gilead had agreed to share information with Merck regarding an antiviral agent against Hep C — provided Merck personnel working on Merck’s competing work be walled off rom the information. Gilead shared information on a call… and a Merck attorney who was on the call who was prosecuting a Merck competing application then amended claims to cover the Gilead product.

As a twist, the application that was amended supported the Gilead product, and the jury had found no derivation. The reason was that the amended Merck application had support for a large genus of compounds, but the amendment narrowed to a subgenus which included Gilead’s leading agent. In other words, Merck had invented the Gilead product, and so there was no but-for materiality (in any meaningful sense that I can see, at least).


In an ideal patent system the patents granted would be of high quality, litigation be a last resort, and the legal process involve no misconduct. But in a world where lawyers on both sides just try to win the case can we expect justice or a shouting match where the longterm goal is to drain the opposition's pockets (with legal fees)?

Recent Techrights' Posts

Over at Tux Machines...
GNU/Linux news
The Myth of an Aging (or Dying) GNU/Linux Leadership
Self-fulfilling prophecies as a tactic?
 
Rumour: Major Finance Layoffs at Microsoft Next Week
If the rumour is true, we'll be hearing barely anything from the mainstream media next week
Links 07/12/2023: More EPO Patents Squashed, More Pfizer COVID-19 Vaccine "Glitches" Found
Links for the day
Still Not 'Canceled'
Ted Ts'o, Jan Kara, Linus Torvalds last month
Google is Googlebombing the Term "Gemini"
Could Google not pick a name that's already "taken"?
Links 06/12/2023: Bitcoin Rebound, China Downgraded by American Firm, Yahoo! Layoffs Again
Links for the day
Shooting the Messenger Using Bribes and Secrecy Bonds
We seem to live in a world where accountability for the rich and well-connected barely exists anymore
Links 06/12/2023: Many More December Layoffs
Links for the day
IRC Proceedings: Tuesday, December 05, 2023
IRC logs for Tuesday, December 05, 2023
PipeWire 1.0: Linux audio comes of age
Once upon a time, serious audio users like musicians and audio engineers had real trouble with Linux
This is How 'Linux' Foundation Presents Linux to the World
Right now it even picks Windows over Linux in some cases
Links 05/12/2023: Microsoft's Chatbot as Health Hazard
Links for the day
There's Nothing "Funny" About Attacking Free Speech and Software Freedom
persistent focus on the principal issues is very important
Professor Eben Moglen Explained How Software Patent Threats Had Changed Around 2014 (Alice Case) and What Would Happen Till 2025
clip aged reasonably well
GNU/Linux Adoption in Africa, a Passageway Towards Freedom From Neo-Colonialism
Digi(tal)-Colonialism and/or Techolonialism are a thing. Can Africa flee the trap?
CNN Contributes to Demolition of the Open Web
Reprinted with permission from Ryan Farmer
Eben Moglen on Encryption and Anonymity
The alternate net we need, and how we can build it ourselves
Yet More Microsofters Inside the Board of Mozilla (Which Has Just Outsourced Firefox Development to Microsoft's Proprietary Prison)
Do you want a browser controlled (and spied on) by such a company?
IRC Proceedings: Monday, December 04, 2023
IRC logs for Monday, December 04, 2023
GNU/Linux Now Exceeds 3.6% Market Share on Desktops/Laptops, According to statCounter
things have changed for Windows in China
Over at Tux Machines...
GNU/Linux news
Links 05/12/2023: Debt Brake in Germany and Layoffs at Condé Nast (Reddit, Wired, Ars Technica and More)
Links for the day