To anyone who knows little about the law or has never watched lawyers in action, I don't want to discourage you about Amarin's prospects in the Hikma-Heath Net infringement case. I made some critical remarks along the way in my analysis of yesterday's hearing, but part of that stems from my high hopes that Amarin can get a big court win at some point. And, until they achieve something in the courts, I think we have to keep the heat on the company to try harder and make sure they're getting the best representation possible.
Generally, oral arguments in a motion to dismiss do not determine the direction the judge will rule. The arguments are held so that the judge can ask any questions to narrow her understanding of the legal issues. Usually, the lawsuit itself and the written arguments carry the day.
Second, this is an instance in which Amarin needs to keep the balls in the air. Surviving a motion to dismiss puts pressure on Hikma and other generics, along with insurance companies, to ensure there is not infringement and, depending on how the judge frames the issues in her ruling, could put pressure on Hikma or Health Net to eventually settle.
With Health Net, a favorable ruling would give Amarin leverage to perhaps negotiate to move Vascepa up to Tier 1 or Tier 2 in their rankings. With Hikma, Amarin might be able to eliminate some of its worst infringing practices and ensure that Hikma's share of the market never becomes much larger than what it is entitled to.
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