Replies to post #306527 on Amarin Corp Plc (AMRN)

[HDGabor]

i-

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?

Because it was one of the reason behind "it defies common sense to expect that Apotex will actively promote the infringing use".

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?

Yes. I am aware of the case where infringing use was 95%, non-infringing use was 5% and the non-infringing use was determined as significant ... the case is Amarin Pharma, Inc. v. Hikma Pharmaceuticals

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".

I am not 100% sure how do you mean it but I assume you refer to the "Non-infringing uses are substantial when they are not unusual, far-fetched, illusory, impractical, occasional, aberrant, or experimental.".

If the amount of prescription is unusual(ly high) it confirms existence of substantial non-infringing use ... but it does not say - legally - anything about inducement.

Sorry if I am wrong but I have an impression that a lot of posters interpret the "intent" (of inducement) as it is equal (includes) with (of) "business model", "aim", "expectation" of / by the generic. But it is not: the "intent" (of inducement) is a specific action regarding the patented use (e.g.. label, promotional material, etc.)

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Direct infringement does not have to be by generics.

Direct infringement could not be by generics.

It is easy to show the existence of direct infringement. Survey to physicians, Symphony Health, IQVIA, etc.

Unnecessary. The existence of direct infringement is not a question. But it is not enough, specific action should be proved also.

Best,
G