“Implicit” Instruction May Support Induced Infringement Claim

The court denied defendant's motion for summary judgment that it did not induce infringement of plaintiff's drug buffer patent because there was a question of fact regarding deliberate indifference. "In order not to infringe or induce infringement, [defendant] 'has carved out any instruction in its label to dilute its product with the sterile diluent [that implicates the patent-in-suit] or any other high pH glycine buffer.'. . . [Plaintiff] argues that [defendant's] label implicitly instructs to use the sterile diluent [that implicates the patent-in-suit]. . . . [T]hat language alerts a practitioner to research those bloodstream infections for precautionary measures. In fact, [defendant's] label refers to a CDC survey about such infections and the CDC survey easily leads practitioners to review the medical research concerning the CDC survey. One such article found in the research . . . recommends using the FLOLAN® diluent to prevent bloodstream infections. Hence, the label circuitously leads the practitioners to infringe the ‘007 patent. This argument by [plaintiff] presents a fact question as to whether [defendant] is implicitly inducing infringement through deliberate indifference."

United Therapeutics Corporation v. Sandoz, Inc., 3-12-cv-01617 (NJD April 10, 2014, Order) (Sheridan, J.)