Corrected, Jan. 15, 2026: This story originally stated that the state of California had sued Gilead. It has been updated to note that many individual plaintiffs sued the company.
A group of plaintiffs is suing Gilead Sciences in the Superior Court of California for the County of San Francisco over its delay of an HIV drug, a move that critics of the pharmaceutical industry call “product hopping.” Regardless of how the lawsuit comes out, the company’s actions strike me as deeply immoral and ought to leave all of us hopping mad.
Here’s what we know.
In the late 1990s, Gilead was investigating two HIV drugs each with the same active ingredient: tenofovir. One of those drugs, eventually known as Stribild, received FDA approval in 2012. It was effective against HIV in early trials but had lots of side effects. A second drug looked more promising; it combined the active ingredient with other chemicals that significantly reduced the risk of side effects. The company recognized that this second drug would be more popular once it came to market. Instead of continuing to develop, test, and submit regulatory documents for the better drug, Gilead came up with an alternative plan.
It put the drug on hold. For six years.
According to a 2003 internal memo, the company predicted that the better drug would “cannibalize existing patients,” meaning it would gain sales at the expense of the first drug. This prediction was spot on. When that second drug, tradename Genvoya, did come to market, its predecessor experienced a steep decline in prescriptions.
You might wonder why the company was concerned about this shift in sales. Sure, sales of its first drug declined. But those sales shifted to its second drug. That’s like a company replacing one model of shoes with a newer one. The company keeps making money, and their product keeps improving. Anticipation of a successful upgrade like this should have made the company ecstatic.
But that’s not how the company saw the issue. Want to guess why?
It comes down to patent protection.
When the first drug came to market, the company knew it had a handful of years where the drug was under patent protection. It was making a lot of money during that time. If it brought the second drug to market too quickly, the first drug would lose sales even though it was still under patent protection. By delaying the second drug, the company was able to extend the time it profitted off the first drug’s patent and then, just when the drug was about to face generic competition, bring the second drug to market. If enough patients switched to the second drug before the first one lost patent protection, the company could keep making money without fear of direct competition.
That’s what critics mean by product hopping. If a drug company is about to lose patent protection on a profitable drug, it finds a way to release a new version of the drug in time to bring the new product to market with its own (longer lasting) patent protection.
Product hopping is a terrible way to maximize people’s health. But it’s a great way to maximize profits. When a company purposely delays bringing a better drug to market to maximize its profits, they are revealing their priorities; they are showing us what they value. And it is not patients’ lives.
The legal implications of such product hopping are complicated. I’m not knowledgeable enough about the law to know whether companies have a legal duty to bring products to market in a timely manner. I don’t even know what timely means in this context.
But the moral situation is simple. Delaying a better drug just to milk profits from an earlier product is wrong. Allowing people to suffer otherwise avoidable side effects so your company can get a few extra years of patent protection: that is downright sinister.
