Juanita Brooks and Jonathan “Jon” Singer of Fish & Richardson turned a $200 million patent jury verdict against client Gilead on its head. The pair persuaded U.S. District Judge Beth Labson Freeman of the Northern District of California to toss the verdict due to opponent Merck’s “unclean hands.”
The judge sharply criticized the conduct of a former in-house patent prosecutor at Merck who recanted deposition testimony at trial. Singer recently told The Recorder a bit about Fish’s approach post-trial, while Brooks chimed in to share a lawyer she admires.
What were the things that had previously gone against Gilead at trial before you scored this post-trial reversal?
Singer: The testimony from Merck’s in-house lawyer, who lied on the stand about utilizing confidential information to draft the patent claims at issue. The jury instructions were drafted in a way that made it harder for the jury to address the testimony regarding misconduct by the Merck lawyer in the liability phase of the case.
What sorts of hurdles was the company facing?
Singer: Gilead was found liable for infringement and was awarded $200 million in damages. Gilead likely also would have been on the hook for ongoing royalties (of unknown amount) on its largest selling product, Harvoni.
How were you and your team able to turn the tide?
Singer: We persuaded the judge that misconduct by Merck’s lawyer was so serious that it required action from the bench. At a separate trial, we persuaded the judge of this and to accept our motions to reopen the record to point to additional misconduct.
What sorts of skills does a litigator need to have in order to score a come-from-behind victory for a client?
Singer: Perseverance. Thick skin. Internal optimism in the face of a defeat
How does playing from behind in litigation differ from getting out to an early lead in a case?
Singer: You have the advantage of not being complacent, so you have to work harder. You have to try something new—reanalyze you case and figure out where you went wrong and put forward something different. In this case, the jury didn’t buy our liability argument. We had to reposition the misconduct argument as being not merely related to liability but also of independent legal significance.
Who is a litigator outside your own firm that you admire and why?
Singer: Abraham Lincoln because he litigated the hardest case of all—the Civil War—and won.
Juanita Brooks: Tom Melsheimer. Tom is the consummate trial lawyer. Judges respect him. Juries love him. And he is a joy to work with.