ViiV Healthcare Co. v. Gilead Scis., Inc.

ViiV Healthcare Co. v. Gilead Scis., Inc.

Opinion

MEMORANDUM OPINION

August 3, 2020

Wilmington, Delaware

/s/ Colm F. Connolly

COLM F. CONNOLLY

UNITED STATES DISTRICT JUDGE

Plaintiffs ViiV Healthcare Company; Shionogi & Co., Ltd.; and ViiV Healthcare UK (No. 3) Limited (collectively, ViiV) filed this lawsuit accusing Defendant Gilead Sciences, Inc. of infringing United States Patent Number 8,129,385 (the #385 patent). The #385 patent covers pharmaceutical compounds for treating the human immunodeficiency virus (HIV).

ViiV alleges that Gilead's HIV drug product Bictegravir [*2]  infringes claim 6 of the #385 patent under the doctrine of equivalents. That doctrine provides that "a product or process that does not literally infringe upon the express terms of a patent claim may nonetheless be found to infringe if there is 'equivalence' between the elements of the accused product or process and the claimed elements of the patented invention." Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 21, 117 S. Ct. 1040, 137 L. Ed. 2d 146 (1997).

Bictegravir has a benzyl ring with three fluorines. D.L 256 ¶ 2; D.I. 269 ¶ 2. Claim 6 of the #385 patent claims four compounds, and pharmaceutically acceptable salts thereof, each with a benzyl ring that has two fluorines. D.I. 256 ¶ 3; D.I. 269 ¶ 3. Gilead has moved pursuant to Federal Rule of Civil Procedure 56 for summary judgment of noninfringement. D.I. 255. Gilead argues that summary judgment is warranted because the two-fluorines limitation in claim 6 specifically excludes compounds with three fluorines.

I. Legal Standard for Summary Judgment

Regional circuit law governs a court's review of motions for summary judgment in patent cases. Brilliant Instruments, Inc. v. GuideTech, LLC, 707 F.3d 1342, 1344 (Fed, Cir. 2013). A court must grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law," Fed. R. Civ. P. 56(a), The moving party bears the burden of demonstrating the absence [*3]  of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the burden of persuasion at trial would be on the non-moving party, then the moving party may satisfy its burden of production by pointing to an absence of evidence supporting the non-moving party's case, after which the burden of production then shifts to the non-movant to demonstrate the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989).

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