Amicus Curiae Brief — Cox Communications, Inc., et al., Petitioners v. Sony Music Entertainment, et al.

Supreme Court briefSep 4, 2025

Ask Donna

What actually matters in this document.

Text

No. 24-171

IN THE

Supreme Court of the United States

COX COMMUNICATIONS, INC. AND COXCOM, LLC,

Petitioners,

SONY MUSIC ENTERTAINMENT, ET AL.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF A PROFESSOR OF PATENT LAW AS

AMICUS CURIAE IN SUPPORT OF NEITHER

PARTY

CHARLES DUAN

Counsel of Record

AMERICAN UNIVERSITY

WASHINGTON COLLEGE OF LAW

4300 Nebraska Avenue NW

Washington, DC 20016

(202) 274-4124

supremecourt.gov@cduan.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . ii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 4

The Copyright Issues in This Case Are Intertwined

with Patent Law . . . . . . . . . . . . . . . . . . . . . . 4

A. Contributory Copyright Infringement Draws

upon the Patent Inducement Doctrine, and Vice

Versa . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. The Factual Issues Here Are Strikingly Analogous to an Ongoing Drug Patent Inducement

Controversy . . . . . . . . . . . . . . . . . . . . . . 7

II. The Close Relationship Between Patent and Copyright Law Informs the Outcome of This Case . . . . . 9

A. A Material Contribution to Patent Inducement

Must Be Specific, Unambiguous, and Affirmative . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

B. An Overbroad Reading of “Material Contribution” Can Harm Competition, Consumers, and

Good Governance . . . . . . . . . . . . . . . . . . . 15

C. The Decision Here Will Affect Patent Law, and

Must Be Considered in That Light . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 24

(i)

TABLE OF AUTHORITIES

CASES

Amarin Pharma, Inc.

v. Hikma Pharmaceuticals USA Inc.,

104 F.4th 1370 (Fed. Cir. 2024) . . . . . . . . . 16, 18, 23–24

A. Stucki Co. v. Worthington Industries, Inc.,

849 F.2d 593 (Fed. Cir. 1988) . . . . . . . . . . . . . . . . 13

Beverly Hills Fan Co. v. Royal Sovereign Corp.,

21 F.3d 1558 (Fed. Cir. 1994) . . . . . . . . . . . . . . . . 13

BMG Rights Management (US) LLC

v. Cox Communications, Inc.,

881 F.3d 293 (4th Cir. 2018) . . . . . . . . . . . . . . . . . 5

Broadcom Corp. v. Qualcomm Inc.,

543 F.3d 683 (Fed. Cir. 2008) . . . . . . . . . . . . . . . . 8

Caraco Pharmaceutical Laboratories, Ltd.

v. Novo Nordisk A/S,

566 U.S. 399 (2012) . . . . . . . . . . . . . . . . . . . 8–9, 17

Carbice Corp. of America

v. America Patents Development Corp.,

283 U.S. 27 (1931) . . . . . . . . . . . . . . . . . . . . . . 12

CR Bard, Inc. v. Advanced Cardiovascular Systems,

911 F.2d 670 (Fed. Cir. 1990) . . . . . . . . . . . . . . . . 13

Dawson Chemical Co. v. Rohm & Haas Co.,

448 U.S. 176 (1980) . . . . . . . . . . . . . . . . . . . . . . 11

DSU Medical Corp. v. JMS Co., Ltd.,

471 F.3d 1293 (Fed. Cir. 2006) (en banc) . . . . . . 6, 13, 22

Dynacore Holdings Corp. v. U.S. Philips Corp.,

363 F.3d 1263 (Fed. Cir. 2004) . . . . . . . . . . . . . 8, 22

(ii)

(iii)

Eli Lilly & Co. v. Teva Parenteral Medicines, Inc.,

845 F.3d 1357 (Fed. Cir. 2017) . . . . . . . . . . . . . . . 15

Federal Communications Commission

v. Consumers’ Research,

145 S. Ct. 2482 (2025) . . . . . . . . . . . . . . . . . . . . 9

Fromberg, Inc. v. Thornhill,

315 F.2d 407 (5th Cir. 1963) . . . . . . . . . . . . . . . 7, 13

Gershwin Publishing Corp.

v. Columbia Artists Management, Inc.,

443 F.2d 1159 (2d Cir. 1971) . . . . . . . . . . . . . . . . . 5

GlaxoSmithKline LLC

v. Teva Pharmaceuticals USA, Inc.,

7 F.4th 1320 (Fed. Cir. 2021) . . . . . . . . . . . . . . 16–18

Global-Tech Appliances, Inc. v. SEB SA,

563 U.S. 754 (2011) . . . . . . . . . . . . . . . . . . . . . . 6

Google LLC v. Oracle America, Inc.,

141 S. Ct. 1183 (2021) . . . . . . . . . . . . . . . . . . . . 1

Halo Electronics, Inc. v. Pulse Electronics, Inc.,

579 U.S. 93 (2016) . . . . . . . . . . . . . . . . . . . . . . 1

Harper v. Shoppell,

28 F. 613 (S.D.N.Y. 1886) . . . . . . . . . . . . . . . . . . 5

Heaton-Peninsular Button-Fastener Co.

v. Eureka Specialty Co.,

77 F. 288 (6th Cir. 1896) . . . . . . . . . . . . . . . . . . . 11

Henry v. A.B. Dick Co.,

224 U.S. 1 (1912) . . . . . . . . . . . . . . . . . . . . . 4, 11

Hewlett-Packard Co. v. Bausch & Lomb Inc.,

909 F.2d 1464 (Fed. Cir. 1990) . . . . . . . . . . . . . 12–13

(iv)

Hikma Pharmaceuticals USA Inc.

v. Amarin Pharma, Inc.,

No. 24-889 (U.S. Feb. 19, 2025) . . . . . . . . . . . . . 16, 23

HZNP Medicines LLC v. Actavis Laboratories UT, Inc.,

940 F.3d 680 (Fed. Cir. 2019) . . . . . . . . . . . . . . . . 14

Kalem Co. v. Harper Bros.,

222 U.S. 55 (1911) . . . . . . . . . . . . . . . . . . . . . . 5

Luvdarts, LLC v. AT & T Mobility, LLC,

710 F.3d 1068 (9th Cir. 2013) . . . . . . . . . . . . . . . . 5

Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,

545 U.S. 913 (2005) . . . . . . . . . . . . . . 4, 6–7, 15, 20, 22

Morgan Envelope Co.

v. Albany Perforated Wrapping Paper Co.,

152 U.S. 425 (1894) . . . . . . . . . . . . . . . . . . . . . . 4

Motion Picture Patents Co.

v. Universal Film Manufacturing Co.,

243 U.S. 502 (1917) . . . . . . . . . . . . . . . . . . . . 11, 19

Oak Industries, Inc. v. Zenith Electronics Corp.,

697 F. Supp. 988 (N.D. Ill. 1988) . . . . . . . . . . . . . . 6

SmithKline Beecham Consumer Healthcare, LP

v. Watson Pharmaceuticals, Inc.,

211 F.3d 21 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . 17

Sony Corp. of America v. Universal City Studios, Inc.,

464 U.S. 417 (1984) . . . . . . . . . . . . . . . . . . 4, 19, 22

Sony Music Entertainment

v. Cox Communications, Inc.,

93 F.4th 222 (4th Cir. 2024) . . . . . . . . . . . . . . . 19–20

Takeda Pharmaceuticals U.S.A., Inc.

v. West-Ward Pharmaceutical Corp.,

785 F.3d 625 (Fed. Cir. 2015) . . . . . . . . . . . . . . 14, 18

(v)

Tegal Corp. v. Tokyo Electron Co., Ltd.,

248 F.3d 1376 (Fed. Cir. 2001) . . . . . . . . . . . . . 6, 13

Twitter, Inc. v. Taamneh,

143 S. Ct. 1206 (2023) . . . . . . . . . . . . . . . . . . . . 6

Vita-Mix Corp. v. Basic Holding, Inc.,

581 F.3d 1317 (Fed. Cir. 2009) . . . . . . . . . . . . . . . 13

Wallace v. Holmes,

29 F. Cas. 74 (1871) (No. 17,100) . . . . . . . . . . . . 4, 10

Warner-Lambert Co. v. Apotex Corp.,

316 F.3d 1348 (Fed. Cir. 2003) . . . . . . . . . . . . . 14, 18

Water Technologies Corp. v. Calco, Ltd.,

850 F.2d 660 (Fed. Cir. 1988) . . . . . . . . . . . . . . . . 6

Weed Chain Tire Grip Co.

v. Cleveland Chain & Manufacturing Co.,

196 F. 213 (1910) . . . . . . . . . . . . . . . . . . . . . . . 11

STATUTES

35 U.S.C. § 271(b) . . . . . . . . . . . . . . . . . . . . . . 6, 12

——— § 271(c) . . . . . . . . . . . . . . . . . . . . . . . . 12

47 U.S.C. § 151 . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Clayton Antitrust Act of 1914, ch. 323, 38 Stat. 730 . . . . . 11

Federal Food, Drug, and Cosmetic Act (FFDCA)

§ 505(j)(2)(A)(v),

21 U.S.C. § 355 . . . . . . . . . . . . . . . . . . . . . . . . 17

——— § 505(j)(2)(A)(viii) . . . . . . . . . . . . . . . . 17

Hatch–Waxman Act, Pub. L. No. 98-417, 98 Stat. 1585

(1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

(vi)

OTHER SOURCES

Charles W. Adams, A Brief History of Indirect Liability

for Patent Infringement, 22 Santa Clara High Tech.

L.J. 369 (2006) . . . . . . . . . . . . . . . . . . . . . . . . 4

Brief of 30 Scholars of Law, Economics, and Medicine

as Amici Curiae in Support of the Petition, Hikma

Pharms. USA Inc. v. Amarin Pharma, Inc., No.

24-889 (U.S. Mar. 20, 2025) . . . . . . . . . . . . . . . . . 16

Ctr. for Drug Evaluation & Rsch., FDA, ANDA

Submissions—Refuse-to-Receive Standards (2d

rev. Dec. 2016), https://www.fda.gov/media/86660/

download . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Charles Duan, Mandatory Infringement, 75 Fla. L. Rev.

219 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . 17, 21

Suzanne S. Dunne & Colum P. Dunne, What Do People

Really Think of Generic Medicines?, in 13 BMC Med.

no. 173 (2015), https://bmcmedicine.biomedcentral.

com/articles/10.1186/s12916-015-0415-3 . . . . . . . . . . 20

Alexander C. Egilman et al., Estimated Medicare Part

D Savings from Generic Drugs with a Skinny Label,

177 Annals Internal Med. 833 (2024) . . . . . . . . . . . 20

———, Frequency of Approval and Marketing of

Biosimilars with a Skinny Label and Associated

Medicare Savings, 183 JAMA Internal Med. 82

(2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

P.J. Federico, Commentary on the New Patent Act, 75 J.

Pat. & Trademark Off. Soc’y 161 (1993) . . . . . . . . . . 12

Aaron S. Kesselheim et al., Variations in Patients’

Perceptions and Use of Generic Drugs, 31 J. Gen.

Internal Med. 609 (2016), https://link.springer.com/

article/10.1007/s11606-016-3612-7 . . . . . . . . . . . . . 20

(vii)

Jenny Lehmann, Aspirin Might Be the Next Big Thing

in Fighting the Spread of Cancer, Discover Mag.

(Mar. 6, 2025), https://www.discovermagazine.com/

aspirin-might-be-the-next-big-thing-in-fighting-thespread-of-cancer-47212 . . . . . . . . . . . . . . . . . . . 7

Mark Lemley, Inducing Patent Infringement, 39 U.C.

Davis L. Rev. 225 (2005) . . . . . . . . . . . . . . . . . . 6

Melville B. Nimmer & David Nimmer, Nimmer on

Restatement (Second) of Torts § 876(b) (Am. L. Inst.

1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Giles S. Rich, Infringement Under Section 271 of the

Patent Act of 1952, 21 Geo. Wash. L. Rev. 521 (1953) . . 12

Jacob S. Sherkow & Paul R. Gugliuzza, Infringement

by Drug Label, 78 Stan. L. Rev. (forthcoming May

20, 2025), https://papers.ssrn.com/sol3/papers.cfm?

abstract_id=5145419 . . . . . . . . . . . . . . . . . . . . 18

S. Sean Tu & Aaron S. Kesselheim, Preserving Timely

Generic Drug Competition with Legislation on

“Skinny Labeling,” 115 Clinical Pharmacology &

Therapeutics 22 (2024) . . . . . . . . . . . . . . . . . . . 21

S. Sean Tu & Ameet Sarpatwari, A “Method of Use”

to Prevent Generic and Biosimilar Entry, 388 New

Eng. J. Med. 483 (2023) . . . . . . . . . . . . . . . . . . . 18

Jie Yang et al., Aspirin Prevents Metastasis by Limiting

Platelet TXA2 Suppression of T Cell Immunity, 640

Nature 1052 (Mar. 5, 2025), https://pmc.ncbi.nlm.nih.

gov/articles/PMC12018268/ . . . . . . . . . . . . . . . . . 7

INTEREST OF AMICUS CURIAE

Charles Duan1 is an Assistant Professor at the American University Washington College of Law, where he

teaches patent law. His interest in this case is in the

proper development of both patent and copyright law, in

ways that best promote innovation access and the public

interest. He has served as counsel to several amici curiae

in patent and copyright cases before this Court and others. See Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183,

1203–04 (2021) (citing brief); Halo Elecs., Inc. v. Pulse

Elecs., Inc., 579 U.S. 93, 111, 114 (2016) (same).

SUMMARY OF ARGUMENT

This is not a patent case, yet patent law is crucial to

it. Copyright law’s contributory infringement doctrine

is closely linked to the parallel doctrine of inducement of

patent infringement. Indeed, the “material contribution”

test at issue is shared between the two.

Patent inducement can thus guide this Court’s analysis. Patent law’s material-contribution analogue has long

required a specific, unambiguous, affirmative act; that requirement is appropriate for copyright as well. And recent decisions by the U.S. Court of Appeals for the Federal Circuit, which have ignored this rule and “made a

mess of patent infringement theory and doctrine” as a result, illustrate the dangerous consequences of failing to

adhere to that rule, for both patent and copyright law.

I. The “historic kinship” between contributory copyright infringement and patent inducement could not be

Pursuant to Rule 37.6, no counsel for a party authored this brief

in whole or in part. No person or entity, other than amicus, its members, or its counsel, made a monetary contribution to the preparation

or submission of this brief.

closer. Patent law was the basis not just for copyright’s

contributory infringement doctrine generally, but also

for both of this Court’s leading contributory copyright infringement decisions. And patent inducement also has a

“material contribution” element, different only in phraseology, in which only a limited set of acts that intentionally

encourage direct infringement will give rise to liability.

Cases applying patent inducement’s “material contribution” test accordingly inform how copyright law should

construe that phrase. A patent-based fact pattern offers

an analogous and instructive example. Old, off-patent

drugs often have newly discovered and patented uses.

There is a remarkably close analogy between generic

makers of these drugs and the Internet service providers

in this case. Both of them market products with legitimate and illegitimate uses. Both interact with consumers

in ways that could be specifically directed to infringement, or could be more generally targeted to all uses.

And both generic drug access and Internet access are

matters of national importance that Congress has sought

to promote.

II. For a century and a half, this Court and others

have arrived at a rule that a material contribution to

patent inducement requires a specific, unambiguous, affirmative act. That patent rule adapts well to copyright

law (indeed, this Court has previously adapted it to copyright law). But recent Federal Circuit decisions have disregarded this historical principle, permitting inducement

liability to be premised on generalized communications,

not specific to any patented method, such as statements

that a generic product is a “generic equivalent,” aggregate sales data of competitors’ products, and mandatory

warning labels.

Besides suggesting that patent inducement is ripe for

this Court’s review (indeed, a petition for certiorari is

pending as of this brief’s filing), the Federal Circuit’s decisions are a cautionary tale for why a clear, narrowly tailored material-contribution test is necessary. These decisions open the door to a wide and unpredictable range

of inducement liability for generic drug manufacturers

based on seemingly innocuous advertising and labeling.

The expanded risk of liability threatens robust competition, fosters consumer confusion, and stymies efficient

government. Those consequences could befall Internet

access as well as access to generic drugs, should the

Fourth Circuit’s similarly expansive reading of “material

contribution” stand.

Patent law thus offers reasons, by experience and

analogy, for why copyright law ought to maintain clear

limits on what acts count as a material contribution.

It also offers a more direct reason. Like this Court’s

other cases on contributory copyright infringement, this

case will almost certainly become a leading precedent

on patent inducement. Among other things, the decision here will likely shape the future trajectory of inducement liability of generic drug manufacturers. Enunciating a properly limited standard for material contributions

will require consideration of not just copyright law, but

patent law as well.

ARGUMENT

THE COPYRIGHT ISSUES IN THIS CASE ARE

INTERTWINED WITH PATENT LAW

There is a “historic kinship between patent law and

doctrines between the two. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 439 (1984). The similarities between copyright’s and patent’s secondary liability doctrines, along with similarities between the present

case’s facts and an exemplary parallel patent controversy,

make patent law especially relevant to the disposition of

this case.

CONTRIBUTORY COPYRIGHT INFRINGEMENT

DRAWS UPON THE PATENT INDUCEMENT

DOCTRINE, AND VICE VERSA

Contributory copyright liability is not just linked to

patent law—it is directly taken from it. See MetroGoldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S.

913, 936 (2005). As a result, the elements of such liability,

in particular the “material contribution” element, have

close analogues in patent law.

Historically, secondary liability for infringement developed first in patent law. See Wallace v. Holmes, 29

F. Cas. 74, 80 (1871) (No. 17,100), discussed in Charles W.

Adams, A Brief History of Indirect Liability for Patent

Infringement, 22 Santa Clara High Tech. L.J. 369, 371–

72 (2006). This Court’s earliest precedents on the subject

dealt with sales of supplies used with patented machines.

See Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 152 U.S. 425, 433 (1894); Henry v. A.B.

Dick Co., 224 U.S. 1, 33–34 (1912). Contributory copy4

right liability appeared several years later, with cases

consistently citing patent law to justify liability for nondirect infringers. See, e.g., Kalem Co. v. Harper Bros.,

222 U.S. 55, 63 (1911) (citing two patent cases as examples of “principles recognized in every part of the law”);

Harper v. Shoppell, 28 F. 613, 615 (S.D.N.Y. 1886).

Because of this tandem historical development, the

doctrinal frameworks are largely the same. Under copyright law, contributory infringement attaches to “one

who, with knowledge of the infringing activity, induces,

causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’

infringer.” Gershwin Publ’g Corp. v. Columbia Artists

Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971) (footnote

omitted).2 This encompasses two elements: (1) a knowledge requirement,3 and (2) an act that “induces, causes or

materially contributes” to direct infringement.

The twin requirements of knowledge and material

contribution are not unique to copyright law. They are

of course basic frameworks from criminal4 and tort li-

There is a division of opinion as to whether copyright law recognizes inducement of infringement as a cause of action distinct from

contributory infringement, the former dealing with acts of advertising and encouragement and the latter solely with product design.

See Melville B. Nimmer & David Nimmer, Nimmer on Copyright

§ 12.04[A][4][b] (2025). The parties in this case, however, appear to

agree that the case is decided under a unified contributory infringement framework.

See also BMG Rts. Mgmt. (US) LLC v. Cox Commc’ns, Inc., 881

F.3d 293, 310 (4th Cir. 2018) (quoting Luvdarts, LLC v. AT & T Mobility, LLC, 710 F.3d 1068, 1072–73 (9th Cir. 2013)).

These are mens rea and actus reus, respectively, criminal law

concepts that need no citation.

ability5 —no surprise, given that contributory liability

“emerged from common law principles.”6

And they are both elements of inducement of patent

infringement. This Court has extensively considered

patent inducement’s knowledge prong. See, e.g., Glob.Tech Appliances, Inc. v. SEB SA, 563 U.S. 754, 766 (2011).

And the statutory text’s requirement that one “actively

induce” infringement is a limitation on what acts can give

rise to liability. 35 U.S.C. § 271(b). See generally Mark

Lemley, Inducing Patent Infringement, 39 U.C. Davis

L. Rev. 225, 628–35 (2005). The contours of that limitation will be discussed later, see infra Section II.A; for

now it is sufficient that the requirement is identical to the

material-contribution requirement in copyright. That is

because Grokster explicitly drew its “purposeful, culpable expression and conduct” test from patent inducement

law, 545 U.S. at 936–37, and the Federal Circuit subsequently adopted the Grokster rule for patent inducement,

DSU Med. Corp. v. JMS Co., Ltd., 471 F.3d 1293, 1306

(Fed. Cir. 2006) (en banc). The tests could not be more

linked.

The only difference is that courts have not christened

patent inducement’s culpable-act element with a name.7

See Restatement (Second) of Torts § 876(b) (Am. L. Inst. 1978);

Twitter, Inc. v. Taamneh, 143 S. Ct. 1206, 1221 (2023).

Grokster, 545 U.S. at 930.

Courts have variously called it “actively and knowingly aiding

and abetting,” Water Techs. Corp. v. Calco, Ltd., 850 F.2d 660, 668

(Fed. Cir. 1988) (emphasis removed), “the taking of affirmative steps

to bring about the desired result,” Glob.-Tech, 563 U.S. at 760, “active solicitation,” Oak Indus., Inc. v. Zenith Elecs. Corp., 697 F.

Supp. 988, 994 (N.D. Ill. 1988), “an affirmative act of some kind,” Tegal Corp. v. Tokyo Electron Co., Ltd., 248 F.3d 1376, 1378 (Fed. Cir.

2001), and “the range of actions by which one in fact causes, or urges,

Insofar as “material contribution” in copyright law is simply shorthand for the requirement of a specific culpable

act under Grokster, the shorthand works equally well for

patent inducement. This brief will use that term for both

patent inducement and contributory copyright liability.

THE FACTUAL ISSUES HERE ARE STRIKINGLY

ANALOGOUS TO AN ONGOING DRUG PATENT

INDUCEMENT CONTROVERSY

The link between patent inducement and copyright

contributory infringement alone proves patent law’s relevance. But consideration of patent law is even more appropriate because of factual similarities. The question

before this Court, namely what activities by an Internet service provider (“ISP”) are a material contribution

to copyright infringement, is surprisingly analogous to a

pressing current issue in patent inducement law involving generic drugs.

Many useful drug compounds are old, well past the

20-year patent term, and thus open to generic competition. Aspirin, a century-old pain reliever, is an example.

But even for old drugs, researchers regularly discover

new uses—a study just this year (2025) discovered how

aspirin might have potential new uses as a metastatic

cancer treatment.8 New methods of using drugs are

patentable, even if patents on the drug itself expired

or aids another,” Fromberg, Inc. v. Thornhill, 315 F.2d 407, 411 (5th

Cir. 1963).

See Jie Yang et al., Aspirin Prevents Metastasis by Limiting

Platelet TXA2 Suppression of T Cell Immunity, 640 Nature 1052

(Mar. 5, 2025), available online; Jenny Lehmann, Aspirin Might Be

the Next Big Thing in Fighting the Spread of Cancer, Discover Mag.

(Mar. 6, 2025), available online. Locations of authorities available

online are shown in the Table of Authorities.

decades ago. See, e.g., Caraco Pharm. Lab’ys, Ltd. v.

Novo Nordisk A/S, 566 U.S. 399, 405 (2012).

When a method-of-use patent is granted on an old

drug, the patent ought not prevent sale of a generic version of the drug outright. See, e.g., Dynacore Holdings

Corp. v. U.S. Philips Corp., 363 F.3d 1263, 1276 n.6 (Fed.

Cir. 2004). But a generic firm could potentially induce infringement of that method-of-use patent, for example by

advertising its products for the specific patented use. Assuming that the knowledge requirement is satisfied,9 the

critical question is what acts of marketing a generic drug

are a material contribution to infringement of the new,

patented method of use.

Though ISPs and generic drug manufacturers may

seem unrelated, the relevant similarities are numerous.

For one thing, both of them offer products with infringing

and noninfringing uses. Internet service users can use

access for work, school, lawful entertainment, or illegal

filesharing. Patients buying generic drugs can take them

for older off-patent uses, or for newer patented ones. In

both cases, then, an overbroad material-contribution test

could “compromise legitimate commerce or discourage innovation having a lawful promise.”

Also, the acts that can count as “material contributions” for both are customer communications that may be

more or less specific to the infringing activity. An ISP

offers customer service to its users, which could involve

specific directions on how to download illegal files or general assistance with connecting. A generic drug manufacturer issues warning labels and marketing press releases

Awareness of the patent at issue and the patent holder’s contentions of infringement can suffice for knowledge. See Broadcom

Corp. v. Qualcomm Inc., 543 F.3d 683, 700 (Fed. Cir. 2008).

in conjunction with its products, which could promote specific uses or more generally advertise the composition and

qualities of the drug.

And in both cases, Congress has overtly expressed an

interest in promoting broad access to the underlying technologies. Regarding ISPs, there are numerous federal

programs aiming to ensure broad availability of Internet

access. See, e.g., Fed. Commc’ns Comm’n v. Consumers’

Rsch., 145 S. Ct. 2482, 2492 (2025). Similarly, the Hatch–

Waxman Act statutory scheme for approval of generic

drugs, Pub. L. No. 98-417, 98 Stat. 1585 (1984), was intended “to speed the introduction of low-cost generic

drugs to market.” Caraco, 566 U.S. at 405. At a minimum, these expressions of legislative intent suggest the

need for carefully tailored intellectual property laws consistent with the importance of Americans’ access to the

Internet and generic drugs.

These factual parallels between ISPs and generic

drug manufacturers mean that attention to patent law is

even more strongly warranted in this case. Controversies over method-of-use patents and generic drugs stemming from the material-contribution prong of patent inducement will provide useful guidance for this Court’s

evaluation of the analogous prong of contributory copyright law. See infra Section II.B. And any decision here

will likely affect outcomes for generic drug manufacturers. See infra Section II.C.

II.

THE CLOSE RELATIONSHIP BETWEEN

PATENT AND COPYRIGHT LAW INFORMS THE

OUTCOME OF THIS CASE

The connections between patent and copyright law,

and between the facts here and the facts of drug method-

of-use patents, are important in this case. First, patent

law has long required that a material contribution be a

specific, unambiguous, affirmative acts to induce infringement. That test is a useful guidepost for copyright law as

well. Second, recent developments in patent law have ignored that requirement, revealing the risks and costs of

an overbroad material-contribution rule. Finally, the fact

that any opinion rendered in this case will likely apply

to patent law suggests further considerations that this

Court ought to take into account.

A MATERIAL CONTRIBUTION TO PATENT

INDUCEMENT MUST BE SPECIFIC, UNAMBIGUOUS, AND AFFIRMATIVE

Over almost a century and a half of history, inducement of patent infringement has required affirmative acts

specifically and unambiguously linked to direct infringement. Ambiguous acts, requiring an inferential leap to

reach a causal connection to direct infringement, are not

a material contribution to patent infringement. This principle, followed in particular in cases of generic drugs and

method-of-use patents, naturally informs how “material

contribution” ought to be interpreted for contributory

EARLY HISTORY. — From the beginning, patent

law has limited the range of acts that count as a material

contribution. This is unsurprising as a matter of simple

logic, as not any act will do; one cannot be liable by wishing for infringement and sneezing. Thus, the first case to

recognize (what was then called) “contributory infringement” deemed that such liability could arise only in view

of “concerted action” that was in “actual concert with others.” Wallace, 29 F. Cas. at 80. But subsequent cases

expanded such liability at times indiscriminately, finding

contributory infringement based on selling products with

noninfringing uses. See, e.g., Heaton-Peninsular ButtonFastener Co. v. Eureka Specialty Co., 77 F. 288, 296–

97 (6th Cir. 1896); Henry, 224 U.S. at 48–49. In one remarkable case, the defendants’ product (chain grips for

car tires) could be used in both patented and noninfringing ways, and the defendants specifically instructed purchasers to use the product “to avoid infringement of the []

patent.” Weed Chain Tire Grip Co. v. Cleveland Chain &

Mfg. Co., 196 F. 213, 215 (1910). Nevertheless, contributory liability was found based on “violation of the spirit of

that patent,” because the product was “capable of being

used” to infringe. Id.

Outcry over these expansive decisions prompted reaction. The Clayton Antitrust Act of 1914 was enacted

within a few years of the above cases, in part as a reaction to one such expansive view of contributory liability.

See ch. 323, § 3, 38 Stat. 730, 731; Dawson Chem. Co. v.

Rohm & Haas Co., 448 U.S. 176, 192 & n.10 (1980) (describing history). More importantly, this Court cut back

on the doctrine, overruling a prior decision that permitted for contributory liability to be premised on an unpatented article. See Motion Picture Pats. Co. v. Universal Film Mfg. Co., 243 U.S. 502, 516 (1917) (overruling

Henry, 224 U.S. 1).10 Explaining the limits of the doctrine in a later case, the Court reasoned that contributory

Although Motion Picture Patents is sometimes characterized as

a case about patent misuse, the text of the opinion suggests that contributory patent infringement was also at issue. Henry expressly

dealt solely with a certified question of contributory infringement,

224 U.S. at 12, so Motion Picture Patents in overruling Henry must

have rejected that express holding. See generally Dawson Chem.,

448 U.S. at 194–95.

patent infringement “is essentially a tort, and implies invasion of some right of the patentee.” Carbice Corp. of

Am. v. Am. Pats. Dev. Corp., 283 U.S. 27, 33 (1931). As a

result, contributory liability could not extend to acts “beyond the scope of the patentee’s monopoly,” such as sale

of unpatented materials or products. Id. In other words,

contributory infringement could arise only out of acts sufficiently linked to the patent’s exclusionary zone.

In 1952, Congress codified the contributory infringement doctrine, splitting it into two parts in the process.

While indirect liability based on sale of components is

dealt with under § 271(c), all other acts are the subject

of § 271(b), which renders liable anyone who “actively induces infringement of a patent.” Although the brevity

of the inducement provision suggests breadth, the words

“actively induces” were intended to limit the scope of such

liability to specific culpable acts. See Hewlett-Packard

Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469 (Fed.

Cir. 1990). Indeed, commentators who participated in the

drafting of the 1952 Act understood that the word “actively” in the provision implied that only certain affirmative acts could be the basis of inducement liability.11

POST-CODIFICATION CASES. — Subsequent case

law clarified that the words “actively induces” in the

statute contemplated specific “types of activity,” and

required “actual intent to cause the acts which constitute the infringement.” Hewlett-Packard, 909 F.2d at

1469. Although that case and many others focused on

the mental-state requirement of intent, that statement

Giles S. Rich, Infringement Under Section 271 of the Patent Act

of 1952, 21 Geo. Wash. L. Rev. 521, 542 (1953); P.J. Federico, Commentary on the New Patent Act, 75 J. Pat. & Trademark Off. Soc’y

161, 214 (1993) (“[C]learly something more than mere knowledge of

an intended infringing use would have to be shown . . . .”).

of the rule also indicates a need for “activity” that will

“cause” the infringement. Id.; see also DSU Med., 471

F.3d at 1306 (“[I]nducement requires evidence of culpable conduct, directed to encouraging another’s infringement . . . .”). Thus, the Federal Circuit has held that

active inducement “requires an affirmative act of some

kind,” in particular one that “in fact causes, or urges, or

encourages, or aids another to infringe a patent.” Tegal

Corp. v. Tokyo Electron Co., Ltd., 248 F.3d 1376, 1378–79

(Fed. Cir. 2001) (quoting Fromberg, Inc. v. Thornhill, 315

F.2d 407, 411 (5th Cir. 1963)); accord Beverly Hills Fan

Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1569 (Fed. Cir.

1994) (“[A]ctive inducement of infringement requires the

commission of an affirmative act.”).

A. Stucki Co. v. Worthington Industries, Inc. is instructive as to the specific nature of the act required.

There, a company admitted to patent infringement and

was subsequently acquired by another firm, leading the

patent holder to accuse the acquirer of inducement. See

849 F.2d 593, 594 (Fed. Cir. 1988). The acquirer had

taken various actions in the act of controlling its subsidiary, which the patent holder alleged were the necessary acts of inducement. See id. at 597. But because

none of those actions specifically encouraged the subsidiary’s infringement, the Federal Circuit held that the

claim was premised on “mere speculation, not a justifiable

inference,” upon which no reasonable jury could find inducement. Id.; see also CR Bard, Inc. v. Advanced Cardiovascular Sys., 911 F.2d 670, 675 (Fed. Cir. 1990) (reversing summary judgment of inducement because evidence of acts and instructions were “at best ambiguous”

as to whether they encouraged infringement); Vita-Mix

Corp. v. Basic Holding, Inc., 581 F.3d 1317, 1329 n.2 (Fed.

Cir. 2009) (no inducement where product instructions do

not specifically “teach an infringing use,” even though following those instructions “may lead to infringing uses of

the device”).

As for inducement and generic drugs, Takeda Pharmaceuticals U.S.A., Inc. v. West-Ward Pharmaceutical

Corp. illustrates the requirement of acts specifically and

unambiguously linked to direct infringement. The patent

at issue related to methods of using the centuries-old

drug colchicine to treat acute gout flares. 785 F.3d 625,

627 (Fed. Cir. 2015). A generic firm sought to market

colchicine for unpatented prophylactic uses; its label directed patients that “if you have a gout flare” while taking colchicine, “tell your healthcare provider.” Id. at 630.

Rejecting the patent holder’s contention that this

statement induced patent infringement, the Federal Circuit held that the drug label “must encourage, recommend, or promote infringement” to be an act sufficient for

inducement liability. Id. at 631. The label’s statement, according to the court, could only cause direct infringement

based on the speculative actions of doctors and patients,

and “vague label language cannot be combined with speculation about how physicians may act to find inducement.”

Id. at 632; see also Warner-Lambert Co. v. Apotex Corp.,

316 F.3d 1348, 1364 (Fed. Cir. 2003) (“[S]pecific intent

and action to induce infringement must be proven . . . .”);

HZNP Meds. LLC v. Actavis Lab’ys UT, Inc., 940 F.3d

680, 702 (Fed. Cir. 2019) (no inducement where drug label

notes the possibility of performing patented method, but

“does not require” those steps).

To be sure, in cases where a generic drug manufacturer or other defendant offers instructions that “are unambiguous on their face and encourage or recommend in-

fringement,” courts have easily found inducement. E.g.,

Eli Lilly & Co. v. Teva Parenteral Meds., Inc., 845 F.3d

1357, 1369 (Fed. Cir. 2017). But such cases only underscore the point that patent inducement requires an act

unambiguously linked to direct infringement, not a vague

act that requires a speculative chain of causation.

This requirement of a specific, unambiguous, affirmative act applies equally well to the material contribution

prong of contributory copyright infringement. Indeed, it

is what this Court relied on in Grokster, when it held that

the patent inducement rule required “clear expression or

other affirmative steps taken to foster infringement.” 545

U.S. at 937. A specific, unambiguous act was necessary

to ensure that “ordinary acts incident to product distribution” could not give rise to liability. Id. Such a rule has

over a century of jurisprudential support, keeps patents

(and copyrights) limited to their proper scope, and prevents secondary liability from “trenching on regular commerce and the development of technologies with lawful

and unlawful potential.” Id.

AN OVERBROAD READING OF “MATERIAL

CONTRIBUTION” CAN HARM COMPETITION,

CONSUMERS, AND GOOD GOVERNANCE

In recent cases dealing with drug method-of-use

patents, the Federal Circuit has permitted inducement

claims to move forward on the basis of non-specific, ambiguous acts by generic drug manufacturers. These cases

conflict with the longstanding requirements for patent inducement described in the previous section. Besides suggesting a need for this Court’s review of the Federal Circuit’s conflicting jurisprudence, these recent cases illus-

trate the harms that may result if “material contribution”

is given too wide a berth.

RECENT DOCTRINAL CONFLICTS. — In Amarin

Pharma, Inc. v. Hikma Pharmaceuticals USA Inc., for

which a petition for certiorari is currently pending, a

generic manufacturer of an off-patent fish-oil derivative

drug was sued for inducement of infringement on a patent

for a specific method of treatment using the drug. See

104 F.4th 1370, 1372–73 (Fed. Cir. 2024), petition for cert.

filed, No. 24-889 (U.S. Feb. 19, 2025). None of the generic

manufacturer’s sales or marketing materials mentioned

the patented use; indeed a press release for the generic

stated that it was “not approved for any other indication”

than the off-patent one. Id. at 1374.

Yet the Federal Circuit permitted a patent inducement case to move forward on the strength of two

seemingly innocuous acts: (1) calling the generic product a “generic equivalent” and “AB-rated” (the regulatory term for generic equivalence), and (2) including the

patent holder’s product sales data in a press release for

the generic. Id. at 1379.12 Given that these are standard

tropes of truthful comparative advertising, the Federal

Circuit’s decision embraces a seemingly limitless view of

potentially material contributions to patent infringement.

See Brief of 30 Scholars of Law, Economics, and Medicine

as Amici Curiae in Support of the Petition at 6, Hikma

Pharms., No. 24-889 (Mar. 20, 2025).

Similarly, GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc. involved a generic manufacturer of the

off-patent drug carvedilol, long used as a cardiovascular

treatment, and a patent on a specific method of using

Amarin also considered but did not rely on the text of the generic

drug label. See 104 F.4th at 1379.

that drug. The asserted material contribution was scattered text in parts of the Indication, Clinical Study, and

Dosage and Administration sections of the generic’s label.

See 7 F.4th 1320, 1328 (Fed. Cir. 2021). According to the

Federal Circuit, a doctor could have pieced together the

patented use from those scattered instructions, thereby

making the label sufficient to sustain a verdict of inducement. See id. at 1328–29, 1335.

Treating a generic drug label as a material contribution is troubling for several reasons. For one thing,

the generic manufacturer does not write the label—the

patent holder does. For a generic drug to be approved by

the U.S. Food and Drug Administration (“FDA”), its label must be “the same” as that of the brand-name equivalent, that is, the patent holder’s product.13 Treating label

text as a material contribution encourages drug patent

lawyers to write labels that will trap future generics in an

impossible regulation–patent bind, contravening the intent of Congress to facilitate generic drug access despite

method-of-use patents. See id. at 1361 (Prost, J., dissenting); Caraco, 566 U.S. at 405–06. See generally Charles

Duan, Mandatory Infringement, 75 Fla. L. Rev. 219, 238–

40 (2023).

Federal Food, Drug, and Cosmetic Act (FFDCA) § 505(j)(2)(A)

(v), 21 U.S.C. § 355. True, the generic label can “carve out” explicit mentions of patented uses, as the generic in GlaxoSmithKline

did. See 7 F.4th at 1324; FFDCA § 505(j)(2)(A)(viii). That is why

the scattering of text across the label was significant. Label text

carve-outs require FDA approval, which almost certainly would be

denied for changing the information on clinical studies, dosage, and

administration. See Ctr. for Drug Evaluation & Rsch., FDA, ANDA

Submissions—Refuse-to-Receive Standards 13 (2d rev. Dec. 2016),

available online; SmithKline Beecham Consumer Healthcare, LP v.

Watson Pharms., Inc., 211 F.3d 21, 24 (2d Cir. 2000).

Furthermore, the notion of “inducement by label” is

in tension with Takeda and other holdings that “vague label language cannot be combined with speculation about

how physicians may act to find inducement.” 785 F.3d at

632; see also Warner-Lambert, 316 F.3d at 1364. See generally Jacob S. Sherkow & Paul R. Gugliuzza, Infringement by Drug Label, 78 Stan. L. Rev. (forthcoming May

20, 2025) (manuscript at 42), available online. In combination with Amarin’s approval of generalized equivalence

statements as the basis for an inducement claim, the marketing of generic drugs has become a minefield. See, e.g.,

S. Sean Tu & Ameet Sarpatwari, A “Method of Use” to

Prevent Generic and Biosimilar Entry, 388 New Eng. J.

Med. 483 (2023).

These recent decisions have “made a mess of patent infringement theory and doctrine.” Sherkow & Gugliuzza,

supra, at 5. In particular, they are likely to bring about at

least three types of harms: to competition, to consumers,

and to effective government.

COMPETITION HARMS. — First, an overbroad

material-contribution standard could impair competition

and foster problematic market concentration. A major

concern with the GlaxoSmithKline and Amarin cases

has been whether generic firms can viably operate in the

shadow of potential inducement liability. In GlaxoSmithKline, for example, the $235 million awarded in damages

exceeded threefold the generic firm’s sales revenues for

the drug in question. See Tu & Sarpatwari, supra, at

484. Without clarity on what marketing or regulatory

acts will avoid inducement liability, generic firms are

unlikely to bet the farm thrice over. That would leave

the method-of-use patent holder as potentially the sole

monopoly provider of an off-patent drug that ought to be

subject to price-lowering competition.

The same competition harms could arise out of contributory copyright infringement. Under the Fourth Circuit’s decision on review here, ISPs like Cox must bear

the costs of receiving, processing, validating, and acting

on possibly millions of copyright notices, because failure

to do so is a material contribution to contributory infringement. See Sony Music Ent. v. Cox Commc’ns, Inc., 93

F.4th 222, 236–37 (4th Cir. 2024). Under that view, contributory copyright infringement enables copyright holders to commandeer ISPs’ business operations and then

leave the ISPs with the bill. The scale of these compliance operations and costs could easily put smaller ISPs

out of business, and perhaps pressure larger ones to consolidate with industrial copyright holders.14

CONSUMER HARMS. — Second, an overbroad test

for material contribution can cause unnecessary consumer confusion. Consider the types of statements that

the Federal Circuit has recently deemed sufficient to give

rise to patent inducement: regulatory drug safety labels,

statements that a generic drug is a “generic equivalent,”

and aggregate comparative marketing data. These are

generalized, commonplace marketing and informational

statements, devoid of specific information about patented

methods, but crucial for informing consumers about what

As an aside, it is interesting to note how accused contributory infringers went on to become the accusers across three key cases. The

defendant in Motion Picture Patents was the Universal Film Manufacturing Company. That company became Universal City Studios,

the plaintiff in Sony. The defendant there, primarily an electronics

company at the time, subsequently merged with and acquired various copyright holders, and is now the first-named plaintiff in the

present case.

exactly they are buying. If non-specific safety and marketing information like these can be the basis for inducement of patent infringement, then consumers will

have little idea what they are buying—who would buy a

generic drug that conspicuously does not describe itself

as a “generic equivalent”?15

Consumer confusion is similarly at risk in the present

case. Anyone who has set up a new home Internet connection knows how crucial an ISP’s customer support can be.

If an ISP offers ordinary assistance to help a consumer

get online, should that support be a material contribution

to copyright infringement? Grokster unambiguously answers in the negative. 545 U.S. at 937. Yet the Fourth

Circuit says maybe, on the theory that connecting a user

to the Internet generally can give rise to specific copyright liability. See Sony Music Ent., 93 F.4th at 236. A

prudent ISP could reasonably choose to withhold robust

customer support in view of this confusion, leaving Internet consumers literally to their own devices when solving

technical connection issues.

GOVERNMENT INEFFICIENCY. — Failing to cabin

material contributions can also impair effective government. Commentators have observed that, by expanding

the scope of patent inducement, the Federal Circuit has

undermined the balanced congressional scheme for facilitating the introduction of generic drugs.16 Insofar as

Cf. Suzanne S. Dunne & Colum P. Dunne, What Do People Really

Think of Generic Medicines? 20, in 13 BMC Med. no. 173 (2015), available online (reviewing patients’ perceptions as to whether generics

are in fact equivalent); Aaron S. Kesselheim et al., Variations in Patients’ Perceptions and Use of Generic Drugs, 31 J. Gen. Internal

Med. 609, 611, 613 (2016), available online.

See, e.g., Alexander C. Egilman et al., Estimated Medicare Part

D Savings from Generic Drugs with a Skinny Label, 177 Annals In-

government-regulated materials like drug labeling and

marketing are the basis of inducement liability, generic

firms find themselves in an impossible double-bind and

federal regulators are potentially denied the information

necessary to perform their jobs.17

ISPs are also regulated entities, under the Federal

Communications Commission (“FCC”) and state authorities. Pursuant to statutory authority, these agencies may

also implement policy objectives such as directing ISPs

to facilitate widespread Internet access or maintain minimum standards of customer service. See 47 U.S.C. § 151

(establishing the FCC “to make available [communication

services] so far as possible, to all the people of the United

States”). So by analogy to patent law, one can imagine

a broad contributory liability regime coming into conflict

with these agencies’ remits.

The patent doctrine of inducement puts a fine point on

the importance of clear, tailored rules for what acts count

as a material contribution to infringement. The Federal

Circuit’s nonadherence to those rules in the generic drug

context has invited harms to competition, consumers, and

governance. Given the close linkage between patent and

ternal Med. 833 (2024); S. Sean Tu & Aaron S. Kesselheim, Preserving Timely Generic Drug Competition with Legislation on “Skinny

Labeling,” 115 Clinical Pharmacology & Therapeutics 22 (2024); see

also Alexander C. Egilman et al., Frequency of Approval and Marketing of Biosimilars with a Skinny Label and Associated Medicare

Savings, 183 JAMA Internal Med. 82 (2023).

See Duan, supra, at 255–58.

THE DECISION HERE WILL AFFECT PATENT

LAW, AND MUST BE CONSIDERED IN THAT

LIGHT

The close tie between patent and copyright law is further relevant because any decision here will also be a

precedent in patent cases. The Federal Circuit and other

courts have relied on this Court’s copyright cases as authoritative precedents for patent inducement law. See,

e.g., DSU Med., 471 F.3d at 1305–06 (discussing Grokster,

545 U.S. 913); Dynacore, 363 F.3d at 1275 (discussing

Sony, 464 U.S. 417). Almost certainly they will do the

same with the decision in this case.

Because of this, the patent law examples provided

above can offer a useful testbed of hypothetical cases, for

measuring various interpretations of “material contribution” proposed by the parties or formulated by the Court.

For any such interpretation, one could ask:

1. Could the text of a mandatory warning label constitute a “material contribution”? What if the label

was written by someone other than the alleged inducer of infringement?

2. Would describing a product as “equivalent” to another constitute a “material contribution” to inducement of infringement of a patent on a method of using the product?

3. How specific would an advertising or marketing

statement need to be to count as a “material contribution” to inducement of infringement of a methodof-use patent? Would general statements be sufficient?

To be sure, the present case is a copyright case, not

a patent case. But the above questions have copyright “equivalents” that illuminate similar underlying

concerns:

1. If the government required ISPs to provide service

to certain customers, and some of those customers

engaged in copyright infringement, would it be a

“material contribution” if the ISP continued service

to those customers in order to remain compliant

with the law?

2. If an ISP advertises itself as “excellent for all Internet activities,” is that a “material contribution”

to copyright infringement, insofar as impermissible

filesharing is one (but not the only) Internet activity?

3. How specific does the ISP’s relationship with the

direct copyright infringer need to be? If the service account holder is a parent of a family of six,

and one of the children engages in illegal filesharing,

is the ISP required to disconnect the entire family

to avoid a “material contribution” to the child’s infringement?

Finally, regardless of how this Court decides the

present case, it must consider the implications for the

currently pending petition for certiorari in Amarin. See

Hikma Pharms., No. 24-889. The present case, of course,

does not present a full opportunity for this Court to

consider the law of patent inducement. Thus, the petition ought to be granted to clarify the ongoing intracircuit split on inducement law within the Federal Circuit, for the same reasons that clarification of the intercircuit split on contributory copyright infringement was

required here. At a minimum, though, Amarin should be

vacated and remanded for further proceedings consistent

with any opinion issued in this case.

CONCLUSION

For the foregoing reasons, this Court should construe

“material contribution” in view of the patent inducement

doctrine.

Respectfully submitted,