Does Unclean Hands Apply to Legal Claims?

An amicus brief in Merck v. Gilead Sciences

|The Volokh Conspiracy |

Today I filed an amicus brief in support of a petition for writ of certiorari in Merck v. Gilead Sciences. The basic issue is whether unclean hands applies to a legal claim for damages for patent infringement. The Federal Circuit said yes. The amicus brief argues no. If you're interested in patent law, equity, or remedies, this case could matter to you. The brief is here.

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  1. It’s not exclusively that makes the heart sacred, it’s the purity.

  2. There are as many loves as there are hearts.

  3. It is hypocritical to feel there are “our kids and their kids”

  4. Sometimes I hurt the people I love without knowing it.

  5. This is the meaning of Cain and Able.

  6. Could it have been that Cain lead his brother to the field to make peace, but instead made war?

  7. Maybe he thought there would be peace through strength?

  8. Or maybe God is watching us?

  9. Or maybe Cain should have just lead his brother to a swamp instead of a field to make peace, just in case things got ugly 😉

  10. Or maybe it’s just me, and I need to change my tone.

  11. The burning question in my mind: why are you treating the phrase “unclean hands” as singular?

    1. I would like to think I’m blaming myself, but I must be blaming the Jews again. Therefore, I must be going to Hell.

    2. Either way, it’s pretty obvious to me now I can’t see through my own jealousy.

    3. Thanks for the tele-therapy, I appreciate it.

    4. There is real power in the stories we tell ourselves, and the Jews have been the victim of there own success, probably going all the way back to the Nobel lie.

    5. But I hate it when they are always the victim. I want to be the victim. There in lies the projection.

    6. All this time I’ve been lying to myself, and I finally see it.

    7. At a very young age, I learned if I hurt myself, mom wouldn’t beat my twin brother, and I have a bit of a martyr complex.

    8. Because the doctrine of “unclean hands” is a singular legal doctrine.

      1. Of course. And if he had written, “Does the doctrine of unclean hands apply to legal claims?” that would have been fine. But the hands themselves are plural. “Do unclean unhands apply to legal claims?”

        1. It’s an elllipsis. “Unclean Hands” is understood to mean “the Doctrine of Unclean Hands.”

          I have always seen it used in the singular. “Defendant claims that unclean hands bars the Plainitff’s claims.”

  12. You do not set out what conduct was alleged to be “unclean hands.” Therefore I query whether this was just a mislabeling of the little used, but as far as I can tell still valid legal maxim of “ex dolo malo non oritur actio.” See, e.g., Higgins v. McCrea, 116 U.S. 671, 686 (1886). While the fact pattern of the foregoing would be today be decided on the grounds of not enforcing a contract as against public policy, its history, at least in my state (Illinois) has been broader, and closer to unclean hands. (I have pleaded it a few times in legal cases, where, had the case been in equity, I would have pleaded unclean hands.) This legal defense is applicable to any action where allowing damages would aid or reward a fraud or illegal or immoral conduct.

    1. Thus, for example, an employee sought damages for retaliatory discharge for reporting the fraud of her employer, but was, in fact the one who committed it, albeit on request; the defense below was called unclean hands, but the appellate court relied on the above legal maxim, instead, to affirm summary judgment.Hubert v. Consolidated Medical Laboratories, 716 N.E.2d 329 ( Ill App.1999). In my research, I saw early cases (which I did not save), where, for example, a consignor who lied to a railroad about the value of what was contained in a package, was barred from recovering for its negligent loss, rather than simply being estopped from recovering more than the stated amount. Even broader was one where the plaintiff was denied contract damages for a perfectly legal contract in connection with its business, when it was in the business of committing fraud.
      In short, this doctrine and its fact patterns are very close to the equitable concept of unclean hands Hence, rather than being an innovation depending on the merger of law and equity, it may be that the decision, rather than the reasoning, is nevertheless well-grounded in established law.

    2. “You do not set out what conduct was alleged to be “unclean hands.”

      From the Federal Circuit opinion, the misconduct here was misleading the Patent Office in the course of obtaining the patent which as at issue in the case. This is a classic case of unclean hands. This is often litigated in patent cases, The seminal case is Precision Instrument Mfg. Co. v. Automotive Co., 324 U.S. 806 (1945)

      1. Well then, I think the legal maxim, as opposed to the equitable one could apply and the whole controversy is barking up the wrong tree. Why go with equitable “unclean hands” when the legal doctrine “ex dolo malo non oritur actio” ( “out of fraud no action arises.”) would seem to do as well in this case.

        If the patent was obtained through misrepresentations, then, from the admittedly state-based research I’ve done, the legal defense is applicable. I read the Precision Instrument case, and it relies heavily on the same public policy underlying the legal doctrine. Combining Higgins v. McCrea, 116 U.S. 671 (1886)–an old but never overruled or abrogated case–with Precision Instrument should be nigh on dispositive, although if I was writing the brief I’d do some intense research and trace the development of the doctrine. My impression is that “unclean hands” may be a bit broader, but I don’t see that as an issue in this case.

        It seems odd that the district and appellate courts, and then amici missed an admittedly obscure, but not unknown doctrine. Maybe I am missing something–if so, I would like to know.what it is. Otherwise, the whole controversy is founded on ignorance of the law and mere mislabeling.

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