Updated on Apr. 30 at 8:35 p.m. Yesterday’s argument in Hikma Pharmaceuticals USA v Amarin Pharma showed a bench once again dubious about litigation trying to hold a large company responsible for the actions of others that it does not control. The specific dispute here involves a generic pharmaceutical manufacturer, Hikma, whose product can be dispensed for uses that both do and do not infringe on patents. The suit is brought by Amarin, which holds patents on uses of the branded pharmaceutical Vascepa, a medication to reduce heart disease for which Hikma’s product is a substitute. Specifically, Amarin seeks to hold Hikma responsible when pharmacists dispense Hikma’s generic product for uses that infringe on its patents. As in the Cox Communications case decided a few weeks ago, the justices seemed to doubt the propriety of imposing liability for the conduct of other parties. The basic situation here is that the lower court (the U.S. Court of Appeals for the Federal Circuit, which is a specialized court that hears patent cases) upheld the validity of a complaint against Hikma that rests on three statements by it: the label on the product, press releases to potential investors, and statements on its web
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