Speech, Drugs, and Patent Infringement

Abstract

The modern law of induced patent infringement contradicts the Patent Act and violates the First Amendment. As currently applied, the law unconstitutionally restricts speech, discourages the entry of generic drugs, and helps keep medicine prices high. Under current doctrine, a generic drugmaker is liable for induced infringement if its drug label so much as hints at using a product in a way that is covered by a patent. This is true even when there is no evidence that prescribers read generic drug labels and in cases when only an in-depth inquiry into the language of the label might promote infringement. As I show, this doctrine flies in the face of a simple reading of the statute. And by restricting lawful and non-misleading speech for such an attenuated purpose, it also violates the First Amendment. Modern patent inducement law should be revised because it unconstitutionally prolongs drug monopolies and undermines a key statutory path to generic competition. Revisiting the roots of inducement doctrine also leads to the surprising conclusion that method-of-use patents—a cornerstone of pharmaceutical intellectual property—are weaker than generally supposed.