Amarin Corp Plc (AMRN)

[rafunrafun]

The judge is zeroed in on the formulary, rather than just the PA. I'm paraphrasing: the lower tier provides an incentive to get gV, thus it induces infringement. That's huge and I didn't pick it up the 1st time I read it. See every time he mentions formulary, in red.

Read in the light most favorable to Amarin, the complaint also plausibly alleges affirmative acts taken with a specific intent to induce another's infringement. Formulary selection and the prior authorization process, as pled, could be affirmative acts under the law of induced infringement. Health Net argues that the selection of its formulary is automatic, based on Plaintiffs own pricing as compared to the generic. (D.I. 85 at 75:5-12 (noting that "this is done by a computer program")). This may be true, but it is not a shield. Health Net added generic icosapent ethyl capsules to its formularies. (D.I. 17 at ,r,r 140-143). It is immaterial whether the placement was done by a human or a computer. Amarin also plausibly pleads specific intent to induce. At the very least, Health Net's prior authorization form supports an inference of specific intent because it lists the patented indication on the generic icosapent ethyl capsules form. (D.I. 17 at ,r 159). Health Net's placement of generic icosapent ethyl on a preferred tier encourages the substitution of the generic for the branded drug, including for the patented indication. (Id at ,r,r 145, 151). Together, this is enough to plead specific intent to induce. In its objections, Health Net argues that the "preferred" language in its formularies cannot be an active step because they are required by state law to disclose which drugs are "preferred." (Id at 5). This may be true, but it is not the language of the formulary that is at issue; it is the incentives the formulary puts in place.