Replies to post #306510 on Amarin Corp Plc (AMRN)

[iryokabu]

HDG,

Can you tell me why the court bothered to mention the percentage of infringing use (2.1%) and non-infringing use (97.9%) in Warner-Lambert Co. v. Apotex Corp., 316 F.3d 1348, 1365 Fed.Cir.2003?

"Even if Warner-Lambert's estimate that 2.1% represents $50 million is correct, it is an inescapable fact that the remaining 97.9% still represents more than 46 times that amount. Especially where a product has substantial noninfringing uses, intent to induce infringement cannot be inferred even when the defendant has actual knowledge that some users of its product may be infringing the patent. Where there are many uses for a product, as the record reflects to be true of gabapentin, and fewer than 1 in 46 sales of that product are for infringing uses, we are not in a position to infer or not infer intent on the part of Apotex without any direct evidence."


Do you know any case where significant non-infringing use exists when the percentage of infringing use is significantly higher than one of non-infringing use?

Is it "unusual" that such a high amount of GV is prescribed? I understand that Marine indication itself is not "unusual", but the amount of prescription could be "unusual".

[gozips]

Very detailed analysis, HD. Thank you.

[dukesking]

HDG, my only hope for contributory infringement (paraphrasing) is that a manufacturer that is aware of the patent and knowingly sells a product to a third party that they know will( does) sell or promote the product in an infringing manner is guilty of contributory infringement. By Hikma taking no action( beyond the label)to prevent this infringement, knowingly supplying to those that will infringe, may constitute an act(s) to induce or indirectly infringe( contributory). Generics know that third parties will infringe by nature of the laws, policies and mandates to promote or otherwise automatically substitute the patented brand for a generic, is contributory infringement and willful blindness to it. Additionally, as you know, a substantial non infringing use does not guarantee protection from contributory or indirect infringement. I agree that GV does have a substantial non infringing use but that’s only one part of the equation. Selling to PBM, states, pharmacies and the like that promote or have policies that promote or induce by law, mandate or policy, could be liable for contributory infringement. IMHO Please let me know your thought. Thanks.

[iwishiknew]

HDG-
I'm not a lawyer - and the various rules for inducement/infringement invariably leads to confusion. So for a layman can you address the following.

Are Drug Distributors (who are at least the conduit for drugs to get from OEM to Pharmacy - they are a wholesaler between the drug originator and the pharmacy) at risk for inducement or infringement. I don't know if the big chains (CVS, etc) have the distributor function in house, but the same risks would apply to that situation. I'm not talking about the pharmacist in the store.
Thanks for your time.