5 Takeaways From Judge Chen’s Gilead Antitrust Order


Publish Date:
March 4, 2020
The Recorder
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A putative class of HIV drug consumers has mostly cleared its first hurdle in an antitrust battle with Gilead Sciences Inc. U.S. District Judge Edward Chen dismissed plaintiffs’ claims of a wide-ranging antitrust conspiracy between Gilead and several other pharma companies—albeit with leave to amend. But Chen also ruled that the plaintiffs had adequately pleaded multiple Sherman Act and state antitrust claims against Gilead only.

Most of them allege that the Foster City-based drug-maker used joint ventures with other pharma companies to illegally extend the patent monopoly on Gilead’s portions of fixed-dose combination drugs. The plaintiffs allege those ventures included agreements not to introduce generic versions of Gilead’s drugs until after the patents on Gilead’s drugs expired.

“We’re obviously very pleased,” said Durie Tangri’s Mark Lemley, one of the attorneys leading the charge for the plaintiffs. “It’s not a complete victory, but it’s a 95% victory.” Lemley added that the plaintiffs have already sought leave to amend one of the dismissed claims on the basis of discovery that was produced last month.

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