Monday, April 14, 2014

“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.)

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