Wrongful Death: The AIDS Trial

by Stephen Davis

  Chapter Twenty-Four

  “You were the person in the United States Patent and Trademark Office responsible for approving the patent application from Dr. Gallo and the Department of Health and Human Services?”

  “Yes, I was.”

  “What kind of patent were they seeking?”

  “There were two applications. One was for an HIV antibody blood test, and the second was for a special T-cell culture called H9 for producing the virus.”

  “And when were these patent applications submitted, Mrs. Ford?”

  “Can I look at my notes?”

  “You may.” Judge Watts swivels in her chair to deliver her answer.

  Mrs. Ford found what she was looking for. “On April 23, 1984.”

  Messick does his surprise thing again. Trouble is, he’s not that good an actor, and if the jury weren’t as truly surprised as he was pretending to be, he wouldn’t be getting away with the theatrics.

  “April 23, 1984? Did I hear you correctly, Mrs. Ford...April 23, 1984?”

  “Yes. That’s correct.”

  “Isn’t that the same day Mrs. Hartman and Dr. Gallo held a press conference to announce the discovery of the cause of AIDS?”

  “Yes. The patent applications were submitted a few hours before that press conference took place, as I recall.”

  “And did you approve those patents?”

  “I hate to admit it, but yes, I did.” Mrs. Ford looks very ashamed of herself.

  “Why do you hate to admit it?”

  “Because of what I discovered after I granted the approvals.”

  “Which was...”

  “There were a number of things. I think you just had a witness testify that the H9 culture was a fraud – not a new culture at all, but a copy of another culture called HUT78. That made it ineligible for a patent. As far as the HIV blood test was concerned, four months earlier the French had submitted an identical patent application which I did not know about and was not told about.”

  “You make it sound like you should have been told.”

  “Yes, I should have. It was Dr. Gallo's legal and ethical responsibility, as part of his application, to tell me if there were other applications pending along the same lines.” Mrs. Ford looks at a different piece of paper in her lap. “The actual language is that he must, quote, disclose information which is material to the examination of this application, unquote. He didn't do that. Had I known about the French application, I would have handled everything differently – sent everything into what we call ‘interference,’ and not approved Dr. Gallo's application.”

  “Were there any other problems with Dr. Gallo's HIV blood test application?”

  Mrs. Ford rearranges her papers once again, looking for yet another sheet.

  “Yes. He stated, quote, we are the original, first and joint inventors ... of the subject matter which is claimed and for which a patent is sought, unquote. That simply wasn't true. I later found out that Dr. Gallo had done extensive work with the French virus called LAV and had, in fact, used it to make the blood test he was trying to patent. He also used a lot of the work the French themselves had done to develop their own blood test, which Dr. Gallo knew about and had access to. In other words, very little, if anything, was Dr. Gallo's original work at all.”

  “Anything else?”

  Mrs. Ford hesitates a moment. Yes, there is, but…

  “I'm not trained in medical research, but his application stated that he was growing HIV, quote, in healthy T cells, unquote. When I stop to think about it, I don't understand. Dr. Gallo's HIV antibody blood test is made from virus that is mass-produced in T cells that continue to grow, rather than die. So, according to Dr. Gallo himself, the virus called HIV does not kill the very T cells it must kill in order to cause AIDS. I, personally, probably couldn't have rejected an application based on that medical inconsistency, but it still bothers me today.”

  “So you approved his application despite all this?”

  “I didn't know any of this at the time, or I wouldn't have.”

  “And I believe the approval came in record time.”

  “Oh, yes, that's the other thing. There was a lot of pressure to get it done, and so I got it done – in thirteen months. I think that's still a record at the Office.” Mrs. Ford seemed conflicted about her answer. One part of her was pleased that Messick would bring this up, and proud of her record. The other part was still lamenting the role she played in the patent approvals and wishing she could have set that record with some other application.

  “Mrs. Ford, there's a lot of money to be made from a successful patent, isn't there?”

  “There can be, yes.”

  “Any idea what this particular patent was worth?”

  “The one for the HIV blood test?”

  “Yes.”

  “Several millions of dollars a year to the U.S. government, at least.”

  “And the French who actually developed it didn't get anything?”

  “No, not originally. But that changed with an agreement reached in 1987.”

  “So now the French get...”

  “Half. But that wasn't true in the beginning. The 1987 Presidential agreement split 1/3rd to the French and 2/3rds to the U.S. Then later a lot of other information came out in a Congressional hearing and Dr. Gallo had to finally admit he lied on the application. The U.S. had to eat crow and appease the French again by giving them a bigger share of the royalties. So now they get half.”

  “And did Dr. Gallo get anything personally?”

  “Yes. There was a law passed, I think it was in 1980, which allows a government employee to receive royalty payments for their discoveries up to $100,000 a year on top of their salary. Maybe that's increased by now, I'm not sure. I’ve been retired and out of the loop for a few years.”

  “So Dr. Gallo got $100,000 a year for this one patent for the HIV blood test. For how long?”

  “I think it's 17 years.” She consults her notes again. “Yes, 17 years.”

  “So in 1984, Dr. Gallo himself stood to make almost two million dollars if you approved his patent application for the HIV blood test.”

  “Yes.”

  “Do you remember the movie, Mrs. Ford, called Jerry McGuire, and that infamous line, ‘Show me the money!’”?

  Mrs. Ford laughs. “Absolutely.”

  “So, Mrs. Ford, do you think two million dollars is enough to make someone lie to get his patent application approved?”

  “Objection.” The Judge has to side with me this time, Crawley thinks.

  “Sustained.”

  “I have no further questions. Thank you, Mrs. Ford.”