I am a layman here, with no background in science. I just happen to be investing in HCV because I know a bit about the virus and it's treatments from being infected and helping others with the virus understand their options.
So far as law, I have been very interested in such things but I have no expertise there either. I cannot argue it one way or the other.
I thought the article was VERY well written though. If one could sift through the many replies, you'll notice some were very good and instructive as to how the law operates.
The article was written as though it was a planned attack to neutralize Gilead's franchise. It read a little like a hollywood plot with twists.
What I wonder is....what if it was Abbott that intended to buy Pharmasett, and it had done all the legwork to secure that? Gilead may have in essence snatched it from Abbott with the unexpected sum of money.
In terms of whether things are "obvious"? Yes it was my initial impression that the use of cocktails might be obvious, given their use with HIV.
After some thought, however I did actually wonder if it could be possible that Abbott (now Abbvie after the split) actually may have devised a method which instructed, laid the groundwork, provided something unexpected or not obvious.
Consider being in Europe before the time of Columbus. We know or have heard that there is a new world. The obvious method is to load a ship and go to. In actual practice, many people tried and failed, and were lost. It took certain types of ships with the right amount of provisions and some knowledge of navigation to accomplish the task. Even then the results were uncertain.
I think it is possible that many people knew that something could be done, but Abbott was the first to file, the first to bring a successful DAA treatment into clinic. It is possible that they may bring the first DAA HCV treatment to without a nuke in the current and 2nd generation iteration, when the sane world knows that a nuke is needed. : ) Many other respected companies tried and failed to do what Abbott accomplished, no?
My point is that it may be less obvious to us laymen what they actually accomplished. The article is written to make it look like a "caper". One can also set emotion aside and try to understand what it might look like from the Abbott perspective, done in good faith, done under existing US patent law. This is certainly what they will argue.
I thought it was a great read. It had an element of surprise, even some humor. Part of that humor extends to my reaction to the Seeking Alpha which has had my inbox ringing every day with yet a new article on the Gilead juggernaut being unstoppable.
There may be a mild market reaction, but that may present a buying opportunity. In the long term it may just be an interesting side note in patent law, or may even influence changes in law.
Sorry for the long reply, but in answer to your post, it almost always looks obvious in retrospect, but at the time it was far less obvious.
Look at the Abbvie/Enta partnership. According to Dew, the amount to be paid to Enanta was never arrived at because at the time, they thought each drug would have to go through trials separately, get approved then priced. The FDA changed the way it conducted HCV trials during the interim. I'm just saying..... it may have been far less obvious back then than it may appear now.
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Oh yes...one more thing.... we often try to figure out what the pharma companies can or should do. Or we see analysts predicting what will happen....or see legislators complaining about prices (even though the cost per cure has come down dramatically).
I have thought that the people running the drug companies are always about 5 moves ahead of the crowd (well, with some companies). This whole thing demonstrates that kind of forethought, and in a kind of devious exploitative patent law twist.
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