Sleven, this is taken from the CAFC opinion:
“Taken on its own, we may agree with the district court (and Hikma) that the label does not, as a matter of law, “recommend[], encourag[e], or promot[e] an infringing use.”
However in the oral hearing, Chief Judge Moore indicated that judges can’t decide how a physician interprets a label, that it’s up to physicians as part of expert testimony. So I think it’s an open question that while the opinion “may” agree the label does not induce, it would ultimately be up to a medical expert providing testimony & whether a jury agrees or not.
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