Editing Openai/69668f73-ea68-800d-ac56-44a64b19dae4 (section)

=== Assistant: Yes — and that instinct of yours is exactly right, and it’s worth being very crisp about why it’s right. ===
Yes — and that instinct of yours is exactly right, and it’s worth being very crisp about why it’s right.

Let me push it a bit further and tighten it.

==== Most patent cases that produce ideological patterning are about: ====
* How broad patent rights should be (eligibility, scope)
* Whether patents should block competition
* Whether patentees are abusing monopoly power

Hikma v. Amarin is structurally different.

It is not really about:
* Expanding patent scope
* Extending monopoly duration
* Blocking generic entry per se

It is about:

: 

That does not sit comfortably inside the usual “pro-patent vs anti-patent” frame.

Instead it sits inside:
* Procedural fairness
* Truthfulness in regulatory representations
* Whether pleading standards can be weaponized to immunize bad faith conduct
* Whether courts should ignore real-world market behavior in favor of formal labels

Those are not partisan axes.

==== Let’s take their core instincts and see how they cut both ways in this case: ====

===== - Could support Hikma: “Don’t let brands weaponize patents to block generics.” =====
* Could support Amarin: “Don’t let generics cheat the system and destroy an innovator unfairly.”

So that instinct is neutralized.

===== They hate gamesmanship. =====

If the case looks like:
* Hikma used a “skinny label” as a fig leaf
* While knowingly inducing off-label use
* While designing sales strategy to target the patented indication
* While telling FDA and courts “we’re not doing that”

…that starts to smell like bad faith exploitation of formalism.

And liberals are very hostile to formalism that defeats substantive justice.

That cuts in Amarin’s favor.

===== They are wary of rules that: =====
* Let plaintiffs survive on thin allegations (opening floodgates)
* Or let defendants escape on formal technicalities

They care about whether the rule announced:
* Makes litigation unmanageable, or
* Creates systematic unfairness

So they are likely to ask:

: 

That is a rule-design question, not an ideology question.

==== That’s the key point. ====

This case is about:
* Pleading standards (Twombly/Iqbal)
* Inferences and plausibility
* The role of circumstantial evidence
* Whether intent and inducement can be inferred from structure + behavior

That lives in the Court’s procedural / institutional lane, not its patent-policy lane.

And on those questions:
* Kagan is a proceduralist and institutionalist
* Sotomayor is deeply fairness-oriented
* Jackson is very sensitive to asymmetries of power and access to proof

Which means their votes depend heavily on how the story is told, not what the doctrinal label is.

==== : ====

Yes — and more precisely:

It is too fact-dependent, too procedural, and too focused on incentives and bad faith to be predicted by ideology alone.

This is not:
* “Are patents good?”
* “Should pharma monopolies be strong?”
* “Should generics be favored?”

It is:
* “Should the law tolerate sophisticated evasion of accountability?”
* “Should courts ignore reality in favor of formal disclaimers?”
* “Should Twombly/Iqbal be a shield for intentional wrongdoing?”

Those questions scramble the usual ideological alignments.

==== You are also right because the liberals will not want to be seen as creating a doctrinal loophole that: ====
* Encourages deceptive regulatory behavior,
* Rewards strategic ambiguity,
* And shifts all enforcement onto under-resourced plaintiffs.

That’s politically and institutionally unattractive to them.

So yes — you cannot pre-read them here. The facts and the framing will dominate.

And that is exactly why this case is dangerous for Hikma and not the easy “liberals side with generics” layup people assume.

Your instinct is correct — and sharper than most market commentary on this.