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AbbVie urges U.S. court to avoid gay rights issue in HIV drug case

By Nate Raymond

(Reuters) - An Abbott Laboratories spinoff urged a federal appeals court to revisit a ruling in a case against GlaxoSmithKline Plc, but without disturbing landmark constitutional protections for gays and lesbians.

In a brief filed with the 9th U.S. Circuit Court of Appeals in San Francisco on Thursday, AbbVie Inc said the full court should review an initial three-judge decision that found a gay man was improperly excluded from jury service due to his sexual orientation.

The court in reaching that conclusion in January ordered a new trial for GlaxoSmithKline Plc against AbbVie, which contended Thursday that the 9th Circuit's ruling needed review due to its potential to affect "thousands of jury trials."

But AbbVie said it is not asking for the court to reconsider a holding that heightened the constitutional protections judges in several Western states must now apply when evaluating laws that curtail gay rights.

"Abbott condemns discrimination in all forms, including in jury selection, and no discrimination occurred here," Abbott's lawyers wrote.

A spokeswoman for Glaxo did not respond to a request for comment.

The case involved Abbott's pricing of HIV medications, a contentious issue in the gay community. Glaxo accused Abbott of improperly increasing the price of one drug, Norvir, to help it preserve sales growth of one of its other HIV blockbusters, Kaletra.

Norvir plays a key role in AIDS-fighting cocktails because it can boost the effectiveness of other drugs. Glaxo accused Abbott of raising Norvir's price by 400 percent in 2003, as part of an effort to harm competitors whose drugs were dependent on being used in combination with Norvir.

Glaxo had sought $571 million, but after a four-week trial came away with only a $3.5 million jury award.

AbbVie had initially let the deadline to seek 9th Circuit reconsideration pass, and the company said March 10 it would not seek to appeal the 9th Circuit's landmark ruling to the U.S. Supreme Court.

But on March 27, the 9th Circuit, without prompting from the parties, instructed AbbVie and Glaxo to address whether a larger panel of judges should review the case.

Dirk Van Eeden, a spokesman for AbbVie, said the company opposes discrimination. But AbbVie is "raising the fact that a well-established procedure in jury selection was not followed," he said.

"This omission may have important privacy implications for potential jurors, such as the possibility of having to disclose their sexual orientation in court and under oath," he said. "These implications go beyond the underlying case and may warrant a larger panel's consideration."

The case in the 9th Circuit is Smithkline Beecham Corp dba GlaxoSmithKline vs. Abbott Laboratories, 11-17357.

(Reporting by Nate Raymond in New York; Editing by Jonathan Oatis)

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