Replies to post #304635 on Amarin Corp Plc (AMRN)

[HDGabor]

N-

Somewhere in that ruling it was stated that knowledge of infringement was enough to prove inducement.

The case law is very clear

Mere knowledge of possible infringement by others does not amount to inducement; specific intent and action to induce infringement must be proven.

Dynacore Holdings Corp. v. U.S. Philips Corp., 363 F.3d 1263, 1276 n.6 (Fed. Cir. 2004)

Proof of actual intent to cause the acts which constitute the infringement is a necessary prerequisite to finding active inducement.

Hewlett-Packard Co. v. Bausch Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1529 (Fed. Cir. 1990).

Inducement requires proof that the accused infringer knowingly aided and abetted another's direct infringement of the patent.

Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294, 1306, 50 USPQ2d 1429, 1437 (Fed. Cir. 1999).

However, I do not (could not) read the Opinion as the mere knowledge of possible infringement by others amounts to inducement ... as it is opposite the case law.

Teva did not simple had a knowledge but (actively) marketed the infringed use.

There was ample record evidence of promotional materials, press releases, product catalogs, the FDA labels, and testimony of witnesses from both sides, to support the jury verdict of inducement to infringe the designated claims

My view / opinion about the Teva vs GSK case is the same as it was: it is not (really) relevant for Amarin.

"skinny" label period:

Teva was not liable because of the label but because of specific intent and action to induce infringement was proven.

prove the intent element [of induced infringement] through circumstantial evidence, just as with direct infringement.

Warsaw Orthopedic, Inc. v. NuVasive, Inc., 824 F.3d 1344, 1347 (Fed. Cir. 2016)

Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence

Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508, n. 17 (1957)

"Assuming" that generic V has knowledge of the ruling, it defies common sense to expect that generic V will actively promote the sale of its approved icosapent for a use that infringe Amarin's patent.
The decision is essentially a roadmap of what not to do. The generics will design any promotional materials, activities or references to their generic drug in a manner to avoid the pitfalls made by Teva.
Hikma and Dr. Reddy’s will likely modify (if necessary) any promotional materials, either press releases or product catalogues or communications to the doctors, to specify that any mention of their generic formulation for Vascepa is not indicated for, and not encouraged for treatment of, the cardiovascular indication. That type of simple modification within any promotional materials more likely be enough to avoid infringement of any of Amarin’s R-IT patents.

"full" label period: I do not see any reason to presume that Hikma or Dr. Reddy’s will request or be required by the FDA to do it.

Too much ado about nothing ...

Best,
G

re.

I interpret market as the act of selling.

The Opinion says

There was ample record evidence of promotional materials, press releases, product catalogs

[alm2]

Generic launch - this is all a game of chicken - the Teva case changed the equation.... generics want to make a safe sure fire profit -legal costs are a chicken feed gamble (continuing the theme) but now it’s all about assessing risk and profit for the generics
We can all pontificate about where the infringement law was / and now is .... but if you were cock sure(again continuing the theme) about making a killing profit on GV before the Teva case you are currently seriously recalculating now if you are a generic
Why risk ? For what reward ? Amarin don’t have to PR to tell the generics what they will do ... they are working it out for themselves ....
This is now a watching game ... wait see what happens ... en banc ? Further legal action to get decision changed ?? launch ..??. injunction ???... infringement/damages??

But each day as time passes by the damage shrinks just a little /and potential for Amarin to make profit in USA grows and Europe approval nears ... a slow recovery in SP over time ... hopefully ???
Alm
I