“Personal Injury-Patent Infringement COVID-19 Are All In The Mix”
Click Here to view the FDA Link to the Truvada Label
“Gilead Sciences and their Truvada/Atripla drug line are facing litigation on several fronts including patent infringement claims by the US Dept of Health and Human Services along with the personal injury claims and CDC research scrutiny on study protocols”
TDF is short for tenofovir disoproxil fumarate. It is an HIV drug marketed by Gilead. TDF drugs are sold under the following different brand names:
TRUVAD-ATRIPLA INJURY CLAIMS INCLUDE:
KIDNEY INJURIES
BONE INJURIES
The litigation assert that Gilead knew of these serious side effects during clinical research and trials, but did not properly warn patients or their doctors.
The other major legal issue that Gilead had already developed safer and more effective HIV drugs (known as TAF drugs), but delayed putting its safer HIV drugs on the market in order to maximize profits on the TDF drugs – even though the TDF drugs were known to cause severe kidney and bone injuries to those patients with existing serious health concerns.
Claims include:
1) Strict Products Liability – Design Defect and Failure to Warn; 2) Negligent Products Liability – Design Defect and Failure to Warn; 3) Breach of Implied Warranty, and; 4) Breach of Express Warranty
Claims assert that:
“FDA twice issued warning letters to Gilead over its TDF marketing practices, stating that their sales representatives had violated the law by giving doctors and patients false and misleading information regarding TDF’s side effects. According to a 2002 FDA Warning Letter, Gilead salespeople falsely stated that TDF had ‘no toxicities’ was ‘benign’ and was ‘extremely safe.’ A 2003 FDA Warning Letter took the uncommon step of requiring Gilead to retrain its sales representatives to provide accurate information regarding the significant side effects associated with TDF and comply with the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 352.”
It also noted that:
“Gilead had a duty to share its exclusive knowledge of the risks associated with TDF. Gilead failed to do this. Instead, Gilead misrepresented the safety and benefits of TDF and failed to provide prescribing physicians and their patients with the information they needed to safely and reasonably prescribe and take Gilead’s drugs.”
And that:
“… studies showed that TAF was far less toxic and confirmed that TDF’s low absorption, high dosage, and potential bone and renal toxicity were real risks. But, Gilead did not publish this research, did not conduct clinical trials of TAF, did not change its prescribing information, and did not instruct its sales representatives to begin informing doctors that the toxicities associated with TDF could be eliminated with a new, better drug.”
Surprisingly, in October 2004, Gilead’s CEO John C. Martin announced, “the company is discontinuing its development program” for TAF.” However, “… Gilead did not discontinue development of TAF. Instead, between October 2004 and May 2005, Gilead applied for seven patents associated with it.”
Gilead, knew that continuing to sell TDF risked permanent and possibly fatal damage to the kidneys and bones in patients prescribed and taking the drug. It also knew that its newer, alternate version, TAF, would reduce the risk of toxicity and damage to kidney and bones.
US Government Sues Gilead Over Truvada Patent
The U.S. government has previously sued pharmaceutical companies for making false claims, bilking Medicare, illegal kickbacks, and sloppy manufacturing practices. But on November 6, 2019 the U.S. Department of Justice (DOJ) filed suit against Gilead Sciences Inc. of Foster City, California, for reasons that cannot easily fit on a bumper sticker. At the center of the dispute are monkey studies done by researchers at the U.S. Centers for Disease Control and Prevention (CDC) with a Gilead drug called Truvada, and the drug’s use as part of a highly effective HIV prevention strategy called pre-exposure prophylaxis (PrEP).
Truvada for PrEP has earned Gilead billions of dollars, and the government contends it deserves some of those earnings because it helped develop the intervention. Specifically, the government alleges Gilead failed to obtain licenses to use four patents that CDC obtained on research results related to PrEP. “Gilead has repeatedly refused to obtain a license from CDC to use the patented regimens,” the federal lawsuit states. “Meanwhile, Gilead has profited from research funded by hundreds of millions of taxpayer dollars … but has not paid any royalties to CDC.” The lawsuit contends that “Gilead’s conduct was malicious, wanton, deliberate, consciously wrongful, flagrant, and in bad faith.”
Gilead has rejected the allegations, arguing that each of the four government patents at issue is invalid. The work conducted by CDC researchers was obvious and proposed by others before they even published their experiment, the company argued in petitions sent to the U.S. Patent and Trademark Office (USPTO) earlier this year. It has asked the agency to cancel the patents.
Researchers familiar with the field say CDC researchers did not invent the concept underpinning PrEP —that the same antiretroviral drugs (ARVs) used to treat HIV could, like malarial pills given to travelers, works as preventives. In essence, the key CDC study, which was reported in 2006, suggested a refinement to the PrEP strategy that other researchers had already shown had great promise. But that does not necessarily mean the federal patents are invalid; that is one of the key questions a judge will have to decide.
If the government wins the case, which could take years to wind through the courts, it’s unclear what would happen to any monetary damages collected from the company—but the litigation itself might pressure Gilead to cut the price of the drug. Reducing drug prices in general has become a high priority for both the Trump administration and Democrats in Congress. And Gilead has drawn widespread criticism from HIV/AIDS advocacy groups for its steep pricing of Truvada, which, using list pricing, has an annual cost of $21,388 per patient in the United States. In May, members of Congress grilled Gilead CEO Daniel O’Day about the pricing issue at a hearing with the unsubtle title “HIV Prevention Drug: Billions in Corporate Profits after Millions in Taxpayer Investments.”
Why is this issue coming up now?
Even though several studies have shown that PrEP stops HIV by various routes of transmission and can play a critical role in bringing epidemics to a halt, it isn’t widely used.
According to the AIDS Vaccine Advocacy Coalition (AVAC), a New York City–based nonprofit that tracks PrEP usage, as of October, fewer than 400,000 people in the world were using PrEP. So, one possibility is that the lawsuit is “a negotiating ploy that’s meant to decrease the price of PrEP and improve access,” suggests Mitchell Warren, head of AVAC.
Although the annual cost of Truvada made by generic drugmakers in several countries outside the United States is $54 a year, Gilead controls the U.S. market—and some contend the high U.S. price is a barrier to access. The PrEP4All Collaboration, an HIV/AIDS activist–led group, launched a #BreakThePatent campaign that has received high-profile media attention. The collaboration has had support from the Global Health Justice Partnership at Yale Law School, which provided an extensive legal analysis in March that concluded “the U.S. government could possibly be entitled to collect money damages.” Representative Alexandria Ocasio-Cortez (D–NY) introduced this analysis at the May congressional hearing. Proving once again that politics make for strange bedfellows, DOJ noted when it filed suit against Gilead that the issue also meshes with President Donald Trump’s “Ending the AIDS Epidemic: A Plan for America,” which he announced at this year’s State of the Union address.
Who invented PrEP?
The idea for PrEP grew out of attempts to prevent transmission of the AIDS virus from a pregnant, infected mother to her baby.
In 1992, monkey researchers from the University of California (UC), Davis, led by Koen Van Rompay published a study in Antimicrobial Agents and Chemotherapy that gave infant animals AZT, the first marketed anti-HIV drug, 2 hours before they intentionally attempted to infect them with the simian immunodeficiency virus (SIV), a simian version of the AIDS virus. The study, which only protected two monkeys, received little attention.
Two years later, a landmark human study established that if given both to the infected mother during pregnancy and the infant at birth, AZT could prevent mother-to-child transmission. Then in 1995, Science (17 November, pp. 1121 and 1197) published a monkey study that turned many heads: A group led by researchers at the University of Washington in Seattle gave 25 animals an antiretroviral called PMPA both shortly before and after injecting them with SIV. The drug protected all animals.
PMPA is also known as tenofovir, and is one of two drugs in Truvada. The closing line of the paper noted that, as was becoming clear with ARV treatment, the drug might work even better if combined with other ARVs.
Van Rompay, who published several more PMPA monkey PrEP experiments over the subsequent decade, says he was surprised that CDC won patents for its later Truvada studies. “I don’t think they have enough evidence to argue they discovered something novel,” van Rompay says. “They just added a second drug.”
Why Did USPTO Issue Patents Based On CDC work?
In 2005, the CDC group reported that daily tenofovir alone protected animals when “challenged” with a rectal dose of SHIV (an SIV/HIV hybrid) once a week, but this only worked for 5 weeks and was deemed “partial protection.” The researchers the next year reported that if they repeated the experiment but added a second Gilead drug called FTC—the second ingredient in Truvada—monkeys were still protected after 14 challenges. “As a result of CDC’s breakthrough, two human PrEP trials already underway changed their drug regimens to match CDC’s new PrEP regimens,” the U.S. government lawsuit notes. The complaint also contends that “no one in the field” expected that tenofovir combined with FTC or any other drug would have such “superior effectiveness.”
What’s Gilead’s Argument Against These Patents?
In patent-speak, if something is “obvious” to a “person of ordinary skill in the art” then it doesn’t deserve a patent. Gilead has two main arguments that Truvada for PrEP was an obvious invention. One is that after Truvada received approval from the U.S. Food and Drug Administration (FDA) in 2004 as a treatment for HIV infection, CDC guidelines endorsed it for PrEP’s close cousin, postexposure prophylaxis (PEP). (PEP, which must be used within 3 days, is primarily advocated in emergency situations such as sexual assault, or when a health care worker has an accidental needlestick at work.) Gilead’s second argument is that two California HIV/AIDS organizations, jointly known as Cal-PrEP, published a report in 2004 that advocated using Truvada for PrEP. One of the co-founders of Cal-PrEP, psychologist Thomas Coates, who heads the Global Health Institute at UC Los Angeles, provided a declaration to Gilead’s lawyers that left no doubt on this point. “At the time Cal-PrEP was published in November 2004, I had every expectation that both Truvada and [tenofovir] would be effective for use as PrEP,” stated Coates, who told Science he was not compensated by Gilead for providing his declaration. “I expected that Truvada would have somewhat better efficacy.”
Is Truvada Better Than Tenofovir Alone?
The U.S. government’s patents revolve around the assertion that Truvada is better than tenofovir alone, but the data on this point are unclear. The researchers who conducted the first CDC monkey study noted that the partial protection may have been linked to variable levels of the drug in the animals (which was fed to them in their food). Van Rompay, who was a reviewer of the published paper that described the work, says he questioned whether infections occurred in animals who did not eat all the drug. “I often did similar studies and the taste was really bad,” van Rompay says. CDC’s Truvada study better accounted for drug levels in the monkeys. No monkey experiment ever did a convincing head-to-head comparison of tenofovir and Truvada, he notes. And he points to a large human study in Kenya and Uganda that did do such a comparison in heterosexual couples (one partner was infected at the outset), which found that both preparations offered significant and statistically indistinguishable levels of protection. A separate study of tenofovir PrEP in people who inject drugs in Thailand also showed that it significantly reduced the risk of HIV infection.
Official PrEP Guidelines
The CDC guidelines recommend Truvada for PrEP and a newer formulation of the combo drug. World Health Organization recommendations suggest PrEP regimens need only contain tenofovir.
Did Gilead Help Develop PrEP?
O’Day told Congress that Gilead had invested $1.1 billion in the R&D for Truvada, but said it did not make sense to separate out how much of that went to treatment versus PrEP, as there was so much overlap in everything from preclinical work to human trials. The U.S. government suit contends that Gilead had a hands-off approach to clinical trials of PrEP and only provided drugs for the CDC studies. Science reported in 2005 (12 August, p. 1002) that Gilead said it had “no interest in pursuing PrEP because of fears that uninfected people who take tenofovir and still become infected might sue the company.”
An estimated 1.1 million Americans are at high risk of becoming infected with HIV and qualify for PrEP, but AVAC estimates only about 135,000 at most now use it. It’s difficult to assess how much pricing has affected usage to date—and will affect it in the future.
A few days before the congressional hearing in May, Gilead announced that it would donate to CDC enough Truvada to treat up to 200,000 Americans for 11 years. In 2020, it also will allow one generic manufacturer to sell the drug in the United States—1 year earlier than required by patent law. Although some HIV/AIDS advocates suspect that change won’t have a major impact on pricing and want Gilead to allow as much generic competition as possible, they say Truvada PrEP’s price tag undoubtedly will drop.
Further complicating the picture, FDA last month approved a new Gilead drug for PrEP, Descovy, that putatively has an improved version of tenofovir. The company has not announced plans to give away Descovy or allow its generic manufacture in the United States. The U.S. government lawsuit claims that the sale of Descovy for PrEP also infringes its patents.
Warren says in the end, price matters, but PrEP usage faces larger obstacles such as health systems scaling up programs to encourage its proper use. “If price was out of the equation,” he says, “it would take one of many barriers away, but it wouldn’t magically increase uptake.”
US Dept. of Health and Human Service Files Patent Infringement Litigation Versus Gilead Sciences, Inc. on November, 6, 2019
____________________________________________________________________________
FOR IMMEDIATE RELEASE
November 6, 2019
Contact: HHS Press Office
202-690-6343
media@hhs.gov
United States Files Patent Infringement Lawsuit Against Gilead Related to Truvada® and Descovy® for Pre-exposure Prophylaxis of HIV
Today, the United States, on behalf of the Department of Health and Human Services, filed a complaint in federal district court against Gilead Sciences, Inc. and Gilead Sciences Ireland UC (collectively, Gilead) seeking damages for Gilead’s infringement of HHS patents related to pre-exposure prophylaxis (or PrEP) for HIV prevention. Despite multiple attempts by HHS to license its patents, Gilead has refused. In the complaint, HHS alleges that Gilead has willfully and deliberatively induced infringement of the HHS patents. The complaint further alleges that, as a result of such infringement, Gilead has profited from research funded by hundreds of millions of taxpayer dollars and reaped billions from PrEP through the sale of Truvada® and Descovy®.
Gilead manufactures, markets, and sells Truvada® and Descovy® for PrEP. Originally, Gilead obtained FDA approval for the use of those products for post-infection HIV treatment in combination with other drugs. But after the Centers for Disease Control and Prevention’s (CDC) groundbreaking PrEP work and subsequent human trials, Gilead also obtained FDA approvals for Truvada®, and more recently Descovy®, to be used as PrEP regimens. Gilead now markets and sells Truvada® and Descovy® for use as the PrEP regimens that HHS has patented. Nevertheless, Gilead has repeatedly refused to obtain licenses for the use of the HHS patents.
“HHS recognizes Gilead’s role in selling Truvada® and Descovy® to patients for prevention of HIV. Communities have put these drugs to use in saving lives and reducing the spread of HIV,” said HHS Secretary Alex M. Azar II. “However, Gilead must respect the U.S. patent system, the groundbreaking work by CDC researchers, and the substantial taxpayer contributions to the development of these drugs. The complaint filed today seeks to ensure that they do.”
Since the beginning of the AIDS epidemic in the early 1980s, researchers worldwide sought drug-based strategies to effectively prevent the spread of HIV. For over two decades, none succeeded. During that time, over 25 million people died due to AIDS.1 And the number of people living with HIV reached its highest level—about 40.3 million people.2
In the mid-2000s, researchers at the CDC succeeded where others had not. These scientists developed innovative two-drug regimens to effectively prevent HIV infection. This type of regimen is known as PrEP.
Numerous human PrEP trials have confirmed that, when used as directed, the PrEP regimens invented by CDC are 99% effective in preventing HIV infection in at-risk patients. Hundreds of millions of taxpayer dollars funded many of these trials.
The United States Patent and Trademark Office granted four patents to HHS that protect CDC’s work and the taxpayers’ investment. These patents entitle HHS to license CDC’s PrEP regimens and receive a reasonable royalty for their use. Two other companies that manufacture generic equivalents of Truvada for PrEP in foreign countries have agreed to licenses with HHS.
2020 Gilead Files Patent Suit vs CDC and US Dept of HHS
Gilead Sciences and federal authorities continue the high-stakes fight over patents on an HIV prevention drug, and now Gilead has filed the a new lawsuit, asserting claims that the U.S. government secured its patents by breaching contracts with the company.
Gilead sued the federal government Friday in the Court of Federal Claims, claiming the Centers for Disease Control and Prevention (CDC) violated four material transfer agreements and one clinical trial agreement.
Gilead Statement on Complaint Against Federal Government in The Court of Federal Claims
Foster City, Calif. – April 24, 2020 – Gilead has filed a breach of contract lawsuit against the Federal Government in the Court of Federal Claims alleging violation of four Material Transfer Agreements (MTAs) and a Clinical Trial Agreement (CTA) by the U.S. Centers for Disease Control and Prevention (CDC). The MTAs and CTA are contracts that governed the terms of the more than 15-year collaboration between Gilead and CDC on various research studies relating to the use of antiretroviral agents for the prevention of HIV infection.
The agreements between the company and the agency “governed the terms of the more than 15-year collaboration” between the parties on HIV prevention drugs, and Gilead says the government violated terms of the deals by seeking its own patents.
Specifically, Gilead says the federal government sought patent protections for HIV prevention drug Truvada without notifying the company as it was required to do. Under the agreements, Gilead says, the company provided “significant” drug quantities to federal researchers “free of charge” for trials. The government was in turn responsible for notifying the company if it made any discoveries. The clinical trial agreement specified that U.S. officials wouldn’t seek to patent the work, according to the suit.
Gilead says the Department of Health and Human Services (HHS) in 2006 “improperly” filed for patent protections and didn’t notify the company. Patent officials granted the HHS a series of four patents starting in 2015, covering the use of Gilead’s medicines for HIV prevention. Now, the HHS is suing Gilead for violations of those patents, which Gilead maintains are invalid.
RELATED: Gilead loses again in PrEP patent fight with HHS, sending dispute to federal court
It’s the latest in a back-and-forth between the parties, which have traded jabs since at least last year. Gilead sought to challenge the patents at the U.S. Patent and Trademark Office, but those petitions fell short.
But meanwhile, Gilead and HHS are also partners in a free drug distribution program after Gilead’s sizable donation agreement last year. And as the COVID-19 pandemic plays out, the company said it’s committed to helping in that response. Gilead’s remdesivir is among the most promising drug candidates against COVID-19, though recent early data for the med have raised questions about its efficacy.
Gilead is seeking a declaration from the court that the government breached the contracts, plus damages. The company says it’s had to pay attorney fees so far as part of the patent disputes and has suffered reputational harm.
Truvada Statute of Limitations
Always review the different state statutes of limitations, most states utilize a two year statute of limitations for defective drug claims like these Truvada lawsuits. Check the plaintiff state of residency statutes on filing deadlines.
In some cases, you may have more than the standard amount of time in the statute of limitations because the statute will have tolled or been delayed. Many states toll their statutes of limitations for personal injury claims where the injury was not apparent. In some of these states, the statute of limitations begins to run when the injury is discovered, or when it should have been discovered.
Because the lawsuits against Gilead for the side effects of their TDF drugs claim that the FDA warning label inadequately warned doctors and patients of the severity of those side effects, the statute should only begin when the side effects became apparent.
Basic Case Requirements
Generally, to potentially qualify for a TDF drug lawsuit, you would need to show that you took a TDF drug and that you suffered a kidney or bone injury. The easiest way to show that a plaintiff took a TDF drug is pharmacy records, then to show a kidney or bone injury, find a diagnosis in hospital or other medical records.
Stay tuned for more developments in the Gilead Sciences, Inc. Truvada-Atripla legal story as it evolves
Disclaimer: Certain excerpts within this article were taken from publicly available media sources
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