Judge Rejects Abbott in HIV Drug Case

SAN FRANCISCO (CN) - A federal judge rejected Abbott Laboratories' request for judgment in an antitrust suit over wide price swings for the HIV drug Norvir.

U.S. District Judge Claudia Wilken's Nov. 24 ruling follows a 9th Circuit mandate that a new trial must be held because a juror was improperly dismissed during jury selection.

The appellate court's remand for a new trial, which was based on Abbot's use of a preemptory strike against the only identifiable gay member of the jury pool, led to Abbott's renewed motion for judgment as a matter of law.

But Wilken found enough evidence was presented during the jury trial for her to deny Abbot's motion on all claims, including that GlaxoSmithKline had failed to demonstrate Abbott's monopoly in the market for HIV protease inhibitors that require the use of Norvir, an HIV drug that boosts their anti-viral properties.

GlaxoSmithKline and several pharmacies and drug wholesalers sued Abbot in 2007 after it increased the price of Norvir.

Before researchers uncovered Norvir's booster properties, which can help HIV patients live longer, Abbott sold the drug as a stand-alone protease inhibitor at $18 for a full dose. In 2003, Norvir's average price had plummeted to just $1.71 for a daily dose.

Abbott meanwhile had introduced the stand-alone protease inhibitor Kaletra, which contained the booster ingredient and a second protease inhibitor. Around the same time, Bristol Meyers Squibb and GlaxoSmithKline released their competing protease inhibitors, Reyataz and Lexiva. Consumers who bought Reyataz and Lexiva also needed to buy the Norvir booster for the drug to approach, or surpass, Kaletra's properties. A competing boosted protease inhibitor did not hit the market until Prezista launched in 2006.

Struggling to boost its market share without removing its product from the market in 2003, Abbott increased Norvir's price. The prices of Kaletra, Reyataz and Lexiva rose as well, but Reyataz and Lexiva consumers were hit hardest since they also needed the expensive Norvir booster.

Wilken cited trial evidence that showed Abbott's anti-competitive conduct.

"Abbott had a pattern of licensing Norvir and increasing the price only at the rate of inflation. In contrast, the December 2003 400-percent price increase caused the cost of GSK's boosted Lexiva-based therapy to increase by seventy-one percent. In addition, GSK presented evidence of 'anticompetitive malice' including a presentation recommending delaying the announcement of the price increase to be 'simultaneous with' the launch of Lexiva and calling the plan a 'clever creative way to make [GSK] look bad.' GSK also presented an email sent shortly after the price increase, from the president of Abbott's United States Pharmaceutical Products Division to a group of individuals responsible for the price increase, stating, 'Congratulations to the A Team. You folks are fantastic. It's too bad you're giving a lump of coal to BMS and GSK for the holidays, but such is life,'" Wilken wrote. "This evidence, combined with the sudden price increase, was sufficient to allow a reasonable jury to find in GSK's favor on its duty to deal claim."

Wilken also found that GlaxoSmithKline had presented sufficient evidence to rebut Abbott's claimed "legitimate business justification" of profiting from its intellectual property rights in Norvir.

"GSK presented evidence that the price increase was timed to disrupt the launch of Lexiva," Wilken wrote. "In addition, GSK presented other evidence that, in response to concerns that competitors were taking market share from Kaletra, Abbott was considering either pulling Norvir from the market or implementing the price increase at issue in this case. Based on this evidence, a reasonable jury could find that Abbott's purported legitimate business justification was pretextual."

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