Relying on the recent U.S. Supreme Court decision in Akamai, and the subsequent en banc Federal Circuit ruling, an Indiana court recently concluded that the entire performance of a patented method covering drug administration is attributable solely to a single entity, the physician or other health care provider of the patient. In particular, although patients on their own need to obtain one of three claimed components of the patented dosing regimen, the court found that physicians and other health care providers direct the manner and timing of ingesting that component and that patient compliance with those instructions is necessary to receive the full benefit of treatment. Thus, there would be no defense of divided infringement because through this attribution, physicians would directly infringe the patent claims, and the generic drug manufacturer defendants would induce such infringement because their drug labeling instructs physicians to follow the patented regimen.
Originally published in LES Insights, September 29, 2015
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