UPDATE 1-Drug company won't appeal gay rights ruling to top U.S. court

Tue Aug 5, 2014 6:13pm EDT

(Adds details about case)

By Dan Levine

SAN FRANCISCO Aug 5 (Reuters) - An appeals court ruling that extended landmark constitutional protections for gays and lesbians will not be appealed to the U.S. Supreme Court, a spokesman for one of the drug companies in the case said on Tuesday.

The issue began when a gay man was excluded from jury service in a lawsuit brought by GlaxoSmithKline against AbbVie over HIV pricing. The San Francisco-based 9th U.S. Circuit Court of Appeals in January had found that the man was improperly excluded because of his sexual orientation.

The court's January opinion heightened constitutional protections judges in several Western states must now apply when evaluating laws that curtail gay rights.

AbbVie spokesman Dirk Van Eeden said on Tuesday the company would not ask the U.S. Supreme Court to review the 9th Circuit's findings. A Glaxo representative could not immediately be reached 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 in 2011 came away with only a $3.5 million jury award. The 9th Circuit ordered a new trial between Glaxo and AbbVie, an Abbott Laboratories spinoff.

In its January ruling, the 9th Circuit cited United States v. Windsor, the U.S. Supreme Court decision last year that struck down part of the federal Defense of Marriage Act (DOMA). Given the legal reasoning in Windsor, the 9th Circuit held that gays and lesbians deserve some of the same constitutional protections as those enjoyed by African-Americans and women.

Juror strikes based on sexual orientation "deprive individuals of the opportunity to participate in perfecting democracy and guarding our ideals of justice on account of a characteristic that has nothing to do with their fitness to serve," 9th Circuit Judge Stephen Reinhardt wrote.

The case in the 9th U.S. Circuit Court of Appeals is Smithkline Beecham Corp dba GlaxoSmithKline vs. Abbott Laboratories, No. 11-17357. (Reporting by Dan Levine; Editing by Leslie Adler and Andrew Hay)

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