NEW YORK, January 15, 2008 – The federal district court in Madison, Wisconsin granted summary judgment on Friday, January 11, 2008, to Milbank’s client QIAGEN, dismissing all antitrust counterclaims brought by Third Wave Technologies, Inc.
After almost a year of litigation and extensive discovery, a team led by partners Errol B. Taylor, John M. Griem, Jr. and Parker H. Bagley, and including counsel Charles W. Westland, and associates Einar Stole, Guy Padula, Faith Jenkins, Pat Marecki, Susie Hensler, Andrea Hood, and Will Gross, as well as discovery attorneys Nadine Payne, Daren Esposito, Amir Malik, Jaime Palomo, Brigitta Spiers, and Craig Kyzar, case manager Monica Alston, and legal assisstants Sakura Toyama and David Rutherford, secured a complete pre-trial dismissal of Third Wave’s Sherman Act and Robinson-Patman Act claims. As a remedy for the dismissed antitrust claims, Third Wave was seeking over $100 million in damages as well as injunctive relief.
The antitrust allegations attacked QIAGEN’s marketing and sales practices relating to its test for high risk human papillomavirus (“HPV”). QIAGEN recently acquired Digene Corporation, which currently manufactures the only FDA-approved test for high risk HPV, permitting physicians to identify women at increased risk of developing cervical cancer. The antitrust counterclaims were raised in response to QIAGEN’s complaint for patent infringement directed against Third Wave’s competing HPV test. According to Third Wave, QIAGEN monopolized the market for high risk HPV tests through exclusionary contracts with customers, by giving away free testing equipment, and by making false statements in the marketplace about Third Wave’s high risk HPV test. Third Wave also asserted that QIAGEN engaged in sham litigation, alleging that QIAGEN brought a baseless suit for patent infringement against Third Wave.
In a 25 page decision, Judge Barbara B. Crabb of the United States District Court for the Western District of Wisconsin rejected all of Third Wave’s allegations. She ruled that QIAGEN’s leading market position is “that of an innovator, getting to the market first with a valuable product and thereby gaining the opportunity to make a substantial profit.” She continued, QIAGEN “is selling a product that many customers prefer over the product defendant is selling, with the not surprising result that defendant has not captured as many customers as it wishes it had.” She found the alleged false statements to be unproven hearsay, and not untrue. As a result of the decision, QIAGEN does not have to conduct the trial previously scheduled to begin February 19, 2008.
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