Mark A. Lemley

Lemley is a prominent figure in the intellectual property realm, with a professorship at Stanford Law School; credit as a co-founder of legal analytics company Lex Machina Inc., now a division of LexisNexis; and a founding partnership at patent litigation boutique Durie Tangri LLP.

He keeps score in part by totaling his successes: Nine wins in his last nine appearances at the U.S. Court of Appeals for the Federal Circuit, 15 citations to his works by the U.S. Supreme Court and a claim to being the most-cited scholar in IP law and one of the four most cited legal scholars of all time.

“Ah, metrics,” he said.

He’s currently readying a class certification motion for purchasers of Human Immunodeficiency Virus infection medicines who allege a conspiracy among drugmakers to keep lower-cost generics off the market in a case Lemley describes as being at the intersection of antitrust and patent law in the pharmaceutical sector. Staley v. Gilead Sciences Inc., 19-CV02573 (N.D. Cal., filed May 14, 2019).

“In 2020, we beat back two motions to dismiss and we are chugging along, heading for class certification this summer,” he said.

Lemley serves as co-lead counsel for HIV/AIDS activists and others affected by higher prices for the modern HIV treatment regimen known as combination antiretroviral therapy, or cART.

The complaint, signed by law partner Daralyn J. Durie, contends Gilead conspired to pay generics manufacturers to use its Tenofovir product, a key to cART therapy, instead of generic equivalents, blocking competition even after Gilead’s Tenofovir patents expired.

Gilead’s sales in the U.S. alone are more than $11 billion annually, the complaint says.

“The scheme has enabled Gilead and its coconspirators to unlawfully extend patent protection for their drugs, impair entry by would-be generic competitors, and charge exorbitant, supracompetitive prices for the drugs that people living with HIV need to survive,” it adds.

Lemley is preparing again to argue before the Federal Circuit, this time to defend a trial court win for a client over a patent on an authentication method found invalid because it was directed to the abstract idea of using a time limit as part of confirming the identity of a user at a terminal. CosmoKey Solutions GMBH & Co. Kg. v. Duo Security LLC, 2020-2043 (F. Cir., filed July 24, 2020).

Duo Security is a subsidiary of Cisco Systems Inc., Lemley’s client.

It won’t be Lemley’s first remote argument.

“I’ve done three or four remote hearings, with visuals, and most went fine,” he said. “This will be my first at the Federal Circuit, and for some reason they are just by phone.”

“You won’t be able to look anyone in the eye or even be sure who is talking,” Lemley added, noting he is now fully vaccinated. “Fact is, I’m ready to see people again.”

— John Roemer