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Judge Sleet grants motion to strike under California anti-SLAPP statute, grants motion to dismiss in part

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In Gilead Sciences, Inc. et al. v. Abbott Laboratories, Inc. et al., C.A. No. 13-2034-GMS (D. Del. Mar. 13, 2015), Plaintiffs Gilead Sciences, Inc., Gilead Pharmasset LLC, and Gilead Sciences Limited (collectively,  “Gilead”) brought this patent infringement suit against defendants Abbott Laboratories, Inc. and AbbVie, Inc. (collectively, “AbbVie”) in late 2013 alleging that “AbbVie falsely and knowingly represented to the U.S. Patent and Trademark Office (‘PTO’) that it invented highly valuable methods of treating the hepatitis C virus (‘HCV’) that were invented by Gilead and its predecessor Pharmasset, Inc. and others.” In March 2014, Gilead filed a Second Amended Complaint, asserting, among other things, three state law claims (Counts 9-11), including (i) violation of Cal. Bus. & Prof § 17200 of the California Unfair Competition Law (“UCL”); (ii) slander of title; and, (iii) breach of contract under Illinois law.  AbbVie in turn filed the present motion to strike under California’s Anti-SLAPP statute (relating to Gilead’s Counts 9 and 10) and Motions to Dismiss for Failure to State a Claim (Relating to Gilead’s Counts 9-11).  Id. at 1-2.

Judge Sleet explained that California’s anti-SLAPP statue was passed in order “to allow [the] court to promptly expose and dismiss meritless and harassing claims seeking to chill protected expression.” First, pursuant to the statute, “the moving party is required to show that the conduct underlying the plaintiff’s cause of action is an act arising from the defendant’s constitutional rights of free speech or petition, and therefore protected.” Second, “if the defendant is successful at step one, the burden shifts to the plaintiff to show there is a probability it will prevail on its claim.” Id. at 5-6.  Judge Sleet noted that there were certain exceptions to the anti-SLAPP statute, and that the exception relevant to the instant matter was that “conduct deemed ‘illegal as a matter of law’ is not protected activity under the Constitution, and therefore, is not protected at step one of the anti-SLAPP analysis.” California courts have interpreted this exception to include “exclusively criminal conduct and not a mere violation of a civil statute or common-law standard of conduct.”  Id. at 6-7.

Gilead argued that the anti-SLAPP exception applied because AbbVie’s inventors violated 18 U.S.C. § 1001 “when they submitted sworn declarations falsely affirming that they had invented the … Combination.” Judge Sleet, however, found that “[a]t this stage of the proceedings, a finding that the inventors ‘knowingly and willfully’ submitted false declarations is premature.”  Id. at 9-10. Given that the exception did not apply, the Court proceeded with the anti-SLAPP analysis. Judge Sleet found that AbbVie met its burden under the first step of the analysis because statements “made while petitioning government agencies (including the PTO) qualify as protected activity under the anti-SLAPP statute.” Addressing step two of the analysis, Judge Sleet explained that “the anti-SLAPP analysis requires the court to determine whether there is a probability Gilead will succeed on Counts 9 and 10,” and as such, the court turned to the motion to dismiss analyses.  Id. at 11. Judge Sleet dismissed Counts 9 and 10 (violation of California’s UCL and Slander of Title/Injurious Falsehood), and accordingly granted AbbVie’s motion to strike related to those claims pursuant to the anti-SLAPP statue.  Id. at 12-16. Judge Sleet, however, denied AbbVie’s motion to dismiss Gilead’s Count 11, which alleged breach of contract. Id. at 16-18.

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