Welcome to Skilled in the Art. I'm Law.com IP reporter Scott Graham. If imitation is the sincerest form of flattery, then the drug-pricing antitrust class action against Gilead Sciences must look like a winner. Today I have news of the first (that I know of) copycat class action on the heels of last week's Staley v. Gilead Sciences Inc.bombshell. Plus, check out who's plugging (sort of) Simon Tam's insider account of his Supreme Court battle with the PTO. And the champagne corks should be popping tomorrow in Waco as TC Heartland marks its two-year anniversary. Do not miss: Late last night, Judge Koh handed a sweeping win to the Federal Trade Commission in its antitrust battle with Qualcomm. As always, you can email meyour thoughts and follow me on Twitter.

Gilead Drug Pricing Suit Draws a Copycat

OK, I have to admit, I had a slightly skeptical reaction when a high-powered team of attorneys brought an antitrust class action last week against Gilead Sciences. Not that the allegations aren't extremely compelling, and may ultimately prove to be meritorious. It was only that another plaintiff had brought somewhat similar claims against Gilead in 2016 and not gotten very far.

But on Tuesday—the day before a raucous House Oversight Committee hearing into Gilead's Truvada pricing—the plaintiffs bringing Staley v. Gilead Sciences Inc.got a big vote of confidence, though maybe not exactly the type they'd like. Three different plaintiff firms brought a copycat complaint, Snipe v. Gilead Sciences. The suit names a different handful of Gilead drug consumers (though minus the insurance plans that feature in the Staley suit). Other than that, Snipe appears to be a virtual carbon copy, brought in the same Northern District of California venue against the same defendants and even featuring the same rhetorical flourishes.

“In a relentless effort to reap ever-more monopoly profits, Gilead engaged in further anticompetitive conduct to reinforce the exclusionary effects of these illegal exclusion agreements,” the 134-page Staley complaint stated last week.

“In a relentless effort to reap ever-more monopoly profits, Gilead engaged in further anticompetitive conduct to reinforce the exclusionary effects of these illegal exclusion agreements,” the 131-page Snipe complaint alleged Tuesday.

(This wording is different from but still reminiscent of AIDS Healthcare Foundation's 2016 complaint: “In a relentless effort to maximize its profits, Gilead manipulated the patent system and engaged in anticompetitive practices to prevent economical access to TAF—an antiviral agent used in the treatment of HIV.”)

I emailed Linda Nussbaum of the Nussbaum Law Group, one of the Snipelawyers, Tuesday afternoon for an explanation and didn't hear back immediately. Also signing onto Snipe are Glancy Prongay & Murray and Milberg Tadler Phillips Grossman.

Mark Lemley of Durie Tangri, one of the firms representing the Staley plaintiffs, declined to comment.

Gilead has called the Staley allegations false, saying it entered into partnerships with other companies with the goal of creating lifesaving therapies.

Incidentally, U.S. District Judge Maxine Chesney has recused herself from the Staley case. It is now assigned to U.S. District Judge Edward Chen.

Photo courtesy of The Slants

Judicial Luminaries Say Check Out This Book (Sort of)

It's not every day that you find Supreme Court Justice Ruth Bader Ginsburg and Federal Circuit Judge Kimberly Moore plugging a litigant's memoir.

But Simon Tam isn't any litigant. He's the leader of Asian American dance rock band The Slants, who prevailed on the Federal Circuit and the Supreme Court to force the USPTO to register his band's name. He's just published “Slanted: How an Asian American Troublemaker Took on the Supreme Court.”

On an “About the Book” blurb on the book's web site, Justice Ginsburg is quoted: “Dance rock band front man Simon Tam sought to trademark The Slants. His aim was to reappropriate a term long used to disparage a minority group and to render the term a badge of pride. All of us agreed.”

OK, Ginsburg didn't actually say that about the book. She said that (and a little more, at the 20-minute mark here) in a 2017 speech to Georgetown law students about the case.

The book's Amazon web page is more precise. It describes the quote from Ginsburg and another from Moore as “Things people have said about Simon.”

Moore is quoted as saying: “Words—even a single word—can be powerful. Mr. Simon Tam named his band The Slants to make a statement about racial and cultural issues in this country. With his band name, Mr. Tam conveys more about our society than many volumes of undisputedly protected speech.”

Moore did indeed say that about Tam in her 2015 en banc decision for the Federal Circuit.

RPX: WD-TX Thrives in Post-TC Heartland World

Today is the two-year anniversary of the Supreme Court's patent venue decision, TC Heartland v. Kraft Foods Group Brands. RPX Corp. reports that the Eastern District of Texas' share of patent litigation has since dropped to 20 percent of defendants added to litigation campaigns (RPX's preferred metric) in the first quarter of this year.

Most of the gain has gone to Delaware, which notched a remarkable 52 percent share. RPX notes that the Western District of Texas is also picking up gains, particularly in NPE litigation, where it saw an 8 percent share in Q1.

RPX attributes the increasing popularity of the Western District to its being a more difficult venue for large tech companies to avoid, because many do business in Austin, combined with the appointment of U.S. District Judge Alan Albright in Waco last year. Albright is a former magistrate judge who also practiced IP law at Bracewell and Fish & Richardson.

In addition to being a seasoned patent jurist, Albright's standing orders and reluctance to stay cases in favor of IPRs may be a draw, RPX suggests.

My ALM colleague Brenda Sapino Jeffreys noted earlier this year that Patterson & Sheridan; Gray, Reed & McGraw and MT2 Law Group have recently opened offices in Waco, which is a 90-minute drive south from Dallas.

Ropes & Gray Adds IP Transactions Partner

Violetta Kokolus has joined Ropes & Gray's New York office from Dechert.

Kokolus counsels clients on IP, data privacy and cybersecurity aspects of M&A transactions, including cross-border deals. She's served as lead counsel on strategic transactions in consumer, retail, banking, financial services, asset management, health care, life sciences and education industries.

Kokolus also has in-house experience, having been seconded with Apple in Cupertino, California, and Panasonic in Osaka, Japan.

“In today's economy, IP is critical to our clients in almost every industry and is typically a key component of all manner of transactions,” said David McIntosh, head of global IP transactions at Ropes, in a written statement. “Our clients will greatly benefit from Violetta's experience and pragmatic approach.”

“It's an honor to join the firm,” Kokolus said.

Venable Adds 'Trial-Tested' IP Attorney

Venable has added IP litigator Charles Monterio from Blank Rome.

Monterio was also a partner at Dickstein Shapiro, and during the early 2000s was a legal intern studying IP and biotech policy for the U.S. Senate agriculture committee. He has experience with complex patent litigation and post-grant proceedings in a wide range of technologies.

“Charles is a trial-tested attorney with ample knowledge of complex patent litigation and strategic counseling who I have known both personally and professionally for years,” Megan Woodworth, co-chair of Venable's IP litigation practice, said in a written statement.

“I look forward to this new chapter of my career in joining this phenomenal group of IP litigators,” Monterio said, adding that Venable's commitment to diversity in the legal profession was part of the draw.

Will Pot Fail the Mayo Test?

Throughout the debate over Section 101 of the Patent Act, I've been hearing that the pharmaceutical industry is worried about being able to patent naturally occurring medicines. It didn't occur to me that cannabis could turn out to be the pharmaceutical that provides the test case.

My ALM colleague Dan Clark has a look at the challenge to Pure Hemp Collective's eligibility challenge to a cannabis extract patented by United Cannabis.

“If you took the plant and made an extract and have a bucket of extract that you're trying to sell, that probably won't be patent eligible,” Oblon, McClelland, Maier & Neustadt partner Daniel Pereira told Clark. But, “in this case, United took the extract and purified it, which was not naturally occurring.”

U.S. District Judge William Martinez found the extract was not a “natural phenomenon” and therefore denied Pure Hemp's eligibility challenge in April.

That's all from Skilled in the Art this week. I'll see you all again on Friday.