"Letter to JT" (last post of mine for day..please tell HD I will accept his apology for his misunderstanding the concept of "off label")
Dear Mr. Thero ceo,
(1) Please be aware that we have a very good case for "induced Infringement", and from a justice standpoint it is wrong and illegal for generics to get away with their scheme to use the over 500 trig population indication for under 500 trig population indication. Even more inequitable than losing the Marine patents (limited to 500 trig population).
The case law states:
"where a product has substantial noninfringing uses, intent to induce infringement cannot be inferred even when the [alleged inducer] has actual knowledge that some users of its product may be infringing the patent....the district court suggested that there was insufficient evidence to establish that any noninfringing use of the generic drug was substantial, calling into question the applicability of the "substantial non-infringing use" doctrine in this case. ASTRAZENECA LP v. Apotex, Inc., 633 F. 3d 1042, 1059,1060 (Fed.Cir. 2010), quoting, Warner-Lambert Co. v. Apotex Corp., 316 F.3d 1348, 1365 (Fed.Cir.2003).(emphasis added)
Use of vascepa in over population of over 500 trigs, ISN'T substantial non infringing use, since it is such a small percentage of the overall use and benefit of vascepa.
We need to let wall street be aware that amarin intends tio file a declaratory judgment claim and an injunction against generics for induced infringement.
(2) Additionally, please be aware that even might have a good case for "Active Infringement", since generics (Hikma) made statements about billions in revenue if they won the patent case, which shows their intent to actively infringe, since a limited over 500 trig population cannot come close to billions of revenue. Moreover, management might have more evidence of generics statements and actions which shows intention to actively infringe.
The case law states:
"liability for active inducement may be found `where evidence goes beyond a product's characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement.'" ASTRAZENECA LP v. Apotex, Inc., 633 F. 3d 1042, 1059 (Fed.Cir. 2010), quoting Ricoh Co. v. Quanta Computer Inc., 550 F.3d 1325, 1341 (Fed. Cir.2008)
(3) Finally, the generics cannot defend the infringement by arguing that off label use is legal, because off-label is: "the use of pharmaceutical drugs for an unapproved indication or in an unapproved age group, dosage, or route of administration". In our case there is an approved indication which ONLY Amarin owns.
Again, please make this known to wall street as soon as possible, and at least at your conference next week. It will make many investors optimistic of our investment and management's intention to defend our intellectual property.
I would appreciate a response whether you agree that filing an injunction and declaratory claim, at least for induced infringement, is in your immediate plans.
