Physician’s Instructions Constitute Direction and Control of Patients for Determining Divided Infringement Under Akamai

Following a second bench trial, the court found that the defendant drug manufacturers induced infringement of plaintiff's chemotherapy drug patent because all steps of the claimed methods could be attributed to physicians. "[T]he factual circumstances are sufficiently analogous to those in [Akamai Technologies, Inc. v. Limelight Networks, Inc., No. 2009-1372, 2015 WL 4760450 (Fed. Cir. Aug. 13, 2015) (en banc) (per curiam)] to support a finding of direct infringement by physicians under § 271(a), and thus inducement of infringement by Defendants under § 271(b). . . . Although the parties present extensive arguments as to whether [the physician's instructions] constitutes the physician 'administering' the folic acid, whether or not this satisfies the definition of 'administer' is not relevant. What is relevant is whether the physician sufficiently directs or controls the acts of the patients in such a manner as to condition participation in an activity or receipt of a benefit—in this case, treatment with pemetrexed in the manner that reduces toxicities—upon the performance of a step of the patented method and establishes the manner and timing of the performance. Defendants argue that there is no way of knowing whether the patient will or will not actually take the folic acid, thus the physician lacks 'control or direction' over this step of the patented process. . . . The Court cannot base a finding of non-infringement upon the mere possibility that some patients might not follow their physician’s instructions and instead must look to the ANDA Products’ labeling to determine, if all the patented steps are followed, whether it would infringe the Asserted Claims."

Eli Lilly and Company v. Teva Parenteral Medicines, Inc., et al, 1-10-cv-01376 (INSD August 25, 2015, Order) (Pratt, J.)