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

=== Assistant: Great question — and a useful one for thinking about cases like Amarin v. ===
Great question — and a useful one for thinking about cases like Amarin v. Hikma / Teva where the Court’s philosophy about patents matters as much as doctrine.

Let’s be precise and a little unsentimental about it 🙂

==== On today’s Court, when people say “the 3 liberal justices,” they usually mean: ====
* Justice Sonia Sotomayor
* Justice Elena Kagan
* Justice Ketanji Brown Jackson

(Justice Jackson is new, so her patent record is thinner; Sotomayor and Kagan are the ones with real history here.)

==== They are generally skeptical of expansive patent rights, especially when those rights: ====
* Impede competition or generic entry
* Raise drug prices or consumer costs
* Create what they view as “monopoly rents” beyond what innovation strictly requires
* Are used aggressively by large corporations rather than individual inventors

They are not anti-patent in principle, but they are:

: 

If you want a one-line summary:

: 

That philosophical frame drives almost all of their votes.

==== ### ====

They strongly supported the line of cases that narrowed what is patentable, especially in biotech / diagnostics / software:
* Mayo v. Prometheus (2012) — invalidated diagnostic method patents
* Alice v. CLS Bank (2014) — invalidated abstract software patents

Sotomayor and Kagan were fully on board with tightening eligibility.

They tend to view broad eligibility as:
* Leading to rent-seeking
* Blocking follow-on innovation
* Creating litigation instead of progress

This has been devastating for parts of biotech and diagnostics — and they have not shown regret about that.

===== They are cautious about strong remedies: =====
* Skeptical of automatic injunctions (eBay v. MercExchange)
* Skeptical of large damages awards
* Concerned about patent litigation being used strategically or coercively

They tend to favor:
* Flexible, equitable standards
* Limiting leverage of patent holders when it harms competition

===== They are generally: =====
* Pro-generic entry
* Anti-“evergreening” strategies
* Sensitive to drug pricing and access issues

They are often sympathetic to arguments that brand-name pharma overuses patents to extend monopolies.

However — and this matters for Amarin — they also care about:
* Truthful labeling
* Regulatory integrity
* Not allowing companies to game the system through deception

So their instinct is not “generics always win” — it’s:

: 

==== ### ====
* Most openly skeptical of patents as monopolies.
* Often frames them as market distortions.
* Very concerned about access, pricing, and inequality.

She is the most likely of the three to vote against patent holders when policy equities are in tension.

===== - Pragmatic, institutionalist. =====
* Cares about administrability, regulatory coherence, and unintended consequences.
* Often tries to write “clean” rules even if they limit patent scope.

She’s not hostile to patents — she’s hostile to messy or overbroad ones.

===== - Too new to have a deep patent footprint. =====
* But her broader jurisprudence suggests: - Strong pro-consumer instincts - Sensitivity to fairness and power imbalances - Skepticism of large corporate leverage

She is likely to align with Sotomayor/Kagan on competition and access.

==== ### ====

You are not in their natural sympathy zone.

You are viewed as:
* A market incumbent
* Exercising state-granted exclusion
* Potentially blocking competition

So you start with philosophical headwinds.

===== - Protecting truthfulness =====
* Protecting regulatory integrity
* Preventing gaming of the system
* Preventing consumer deception
* Preventing free-riding on innovation without bearing its cost

Then you can bring them over — or at least neutralize their skepticism.

That’s why in cases like GSK v. Teva and Amarin v. Hikma, the narrative battle matters as much as the doctrinal one.

==== The three liberal justices tend to: ====

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They are not anti-innovation, but they are anti-overreach.

If you want the blunt version:

: 

That’s the intellectual terrain you’re dealing with.