Clarence Thomas Asks Lawyer: What Impact Do States Have On Generic Drug Copyright Case?

Added: 2026-05-14

[00:00:00]Welcome the court's questions.

[00:00:02]What would respondent have to have alleged to survive a motion to dismiss?

[00:00:07]I think they would have had to I >> In your world, not the Fed Circuits world. In our world, the the respondent would have had to to identify statements or actions that had the clear purpose of induce of causing others to infringe as something that the the brand wanted to bring about. The court in Grokster said it was with reference to copyright, but it was drawing on copyright on patent law principles. The court said, "One who distributes a device with the object of promoting its use to infringe copyright as shown by clear expression or other affirmative steps taken to foster infringement is liable for the resulting acts of infringement by third parties."

[00:00:49]And so they would have needed to point to statements or actions that clearly revealed a purpose to induce infringement. What role what impact on is it that occurs in states that uh uh encourage the use of the uh generics for the uh patented use?

[00:01:12]What does that have on uh the problem that the respondent is having? I mean I I I think one of the principles that emerges from this court's cases and from Cox's most recent >> mean on this. I mean with the problems of the un- of the unpatented the uh generic being used for uses uh that are still patented by respondent. I mean, the preliminary point I would make is the perceived difficulty or the actual difficulty of going after the direct infringer or getting the direct infringement to start to to stop is not a justification for watering down inducement principles. Now, there there there are other things that respondents could try to do, and some of them they have tried to do. They sued Health Net in this case and they separately alleged that the health insurer through its reimbursement policies was encouraging pharmacies to fill the drug But aren't some states doing that, too?

[00:02:10]I mean, states certainly have these generic substitution laws and I'm not sure to what extent states are regulating the health insurers, but certainly Amarin and similarly situated companies could urge state legislatures to take measures to prevent this from happening.

[00:02:25]The other thing they could do, I understand they don't want to sue the doctors, but they could attempt informational campaigns to doctors and tell the doctors our product is the only one that is authorized to be used for the CV indication. It would be infringement of patent to administer icosapent ethyl for the purpose of reducing cardiovascular risk and the doctor really is in the best position of any other single actor to say for what purpose am I prescribing the drug and at least in theory could figure out is there a patent on one method of use and adjust prescribing practices accordingly.