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In a case that should serve as a warning to in-house attorneys, one of Merck's own attorneys did more than drop the ball -- he hid it, and then lied about it. The federal district court, and the Circuit Court of Appeals for the Federal Circuit weren't having none of that.
Only the ball wasn't a ball, it was a pharma patent for a drug that went on to rack up billions in revenue. What's worse is that as a result of the in-house lawyer's "ball" faced lie, a $200 million jury verdict Merck won against Gilead was vacated.
Perhaps some in-house attorneys need to remember, attorneys are part of the service industry.
Unclean hands isn't just a fun affirmative defense to throw around in every case you're tasked with defending, it's one of the must haves as it can do more than defense a case, it can absolutely crush your opponent.
Even in house attorneys, with all their institutional duties, have to be sure to keep their hands clean, or else their company could face serious consequences, like getting a $200 million jury verdict stripped away.
What did the Merck in house lawyer do that was so bad? He lied to the court, while under oath. However, that was not all that the courts found led to the finding of unclean hands. One of Merck's expert doctors violated a firewall and learned information he should have never learned. Despite this, that doc used what he learned to narrow the scope of Merck's patents.
While the drugs developed proved to be effective, sadly, Merck is not going to be able to enforce their patents because of the finding of unclean hands, which could result in significant additional financial losses.
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