We'll have argument next in case 24889, Hickma Pharmaceuticals versus Amerin Pharma.

Mr. Klein.

Thank you, Mr. Chief Justice, and may it please the Court.

Under Section 271B of the Patten Act, selling a product suited for both infringing

and substantial non-infringing uses is lawful unless the seller actively induces the infringing and substantial non-infringing uses is lawful, unless the seller actively induces

the infringing use. Congress later passed Hatchwaxman Section 8 to ensure that one infringing

use will not foreclose selling a generic drug for a second non-infringing use. So public statements entirely consistent with

selling skinny-labeled generic drug products under Section 8 cannot actively induce infringement.

Under our approach and the one advanced by the United States, actively induced infringement

when dealing with statements requires

a clear message that necessarily promotes infringement.

The Court applied this standard in Groxer and, more recently, in Cox.

Active inducement cannot depend on whether doctors might read infringing instructions into product

descriptions that on their face are entirely consistent with non-infringing use.

Amarin argues that generic drug companies must constantly discourage infringement with

disclaimers that are explicit, but that

turns the statute on its head.

Agreeing with Amarin, the Federal Circuit basically swapped the statutory term active for its

antonym, passive.

And under the decision below, Patt patent lawsuits filed after skinny labeled product launches

will routinely survive a pleading challenge. This shuts the Section 8 pathway down. Generic

companies won't choose that pathway if at best it means paying millions in legal fees and, at worst, a massive

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