In re HIV Antitrust Litigation

Filing 1781

ORDER re TDF Patent Settlement Agreement. Signed by Judge Edward M. Chen on 4/12/2023. (emclc2, COURT STAFF) (Filed on 4/12/2023)

Case 3:19-cv-02573-EMC Document 1781 Filed 04/12/23 Page 1 of 2

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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IN RE HIV ANTITRUST LITIGATION.

Case No. 19-cv-02573-EMC

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ORDER RE TDF PATENT
SETTLEMENT AGREEMENT
Docket No. 1757

United States District Court
Northern District of California

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Previously, the Court rejected Defendants’ contention (made in its Motion in Limine No.

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4) that all evidence or argument related to the TDF patent settlement agreement should be

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excluded. As the Court noted, “[t]here is evidence suggesting that negotiations related to the TDF

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patent settlement agreement informed what happened during negotiations related to the FTC

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patent settlement agreement.” Docket No. 1716 (Order at 3). However, the Court added that it

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did “not intend there to be a mini-trial on the TDF patent settlement agreement, which is no longer

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part of the reverse payment claims.” Docket No. 1716 (Order at 4). The Court further stated that

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it would not permit evidence or argument as to whether the Federal Trade Commission did or did

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not approve the TDF patent settlement agreement. This was consistent with the Court’s earlier

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Daubert ruling that a defense expert (Dr. Wright) could not opine on whether the Federal Trade

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Commission implicitly approved of (i.e., found no antitrust problem with) the FTC patent

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settlement agreement. The Court, however, asked the parties to “meet and confer to determine

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whether they can reach agreement on a stipulation of fact related to the TDF patent settlement

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agreement – including the removal of the no-authorized generic provision from the settlement

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agreement.” Docket No. 1716 (Order at 4). That provision was removed based on the Federal

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Trade Commission’s expressed concern about the inclusion of the provision.

Case 3:19-cv-02573-EMC Document 1781 Filed 04/12/23 Page 2 of 2

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light of that fact, the Court stands by its earlier rulings. Neither party may present evidence or

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argument related to discussions with the Federal Trade Commission about either the TDF or FTC

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patent settlement agreements or about the agency’s responses to those agreements. Likewise, the

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parties may not present evidence or argument related to Gilead and Teva removing the no-

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authorized generics provision from the TDF patent settlement agreement because of the agency’s

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response. However, if Plaintiffs argue that the TDF or FTC patent settlement agreement was a

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“secret” (e.g., an anticompetitive agreement secretly negotiated and/or concealed from any public

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view), then that may open the door to such evidence or argument.

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United States District Court
Northern District of California

The parties have reported back and stated that they were not able to reach agreement. In

To the extent the parties have raised issues about the TDF patent settlement agreement as

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related to bellwether exhibits and/or deposition testimony, the Court shall issue separate orders

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addressing such.

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IT IS SO ORDERED.

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Dated: April 12, 2023

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______________________________________
EDWARD M. CHEN
United States District Judge

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