The sell side analysis of the implications of the Hikma ruling for
$LQDA misses the mark.
Sell side is calling it bullish but calling it bullish for the wrong reasons - e.g. that it takes away the possibility of a drug removal. While that may be true, that is not the important read through.
Hikma is bullish because it has a direct bearing on the dependent claims analysis. Everyone has been focused on Claims 1 and 14, and ignored the dependent claims.
The dependent claims are murky and Andrews was always troubled by them. He could use Bayer to say that they don't have patentable weight, and are therefore not valid but the cleaner arrow was always going to be Hikma - which if it got over turned would allow him to say that there is no induced infringement either.
This Hikma ruling in effect says that if it is not on the label, then it is not the company's problem. The capabilities outlined in the dependent claims are not in
$LQDA's label ergo it is impossible per Hikma for
$LQDA to infringe those claims.
That new precedent knocks out every dependent claim very cleanly now.
The timeline of this case as much as it vexed folks makes more sense now.
Andrews hears the case in June and recognizes both that a launch is underway and he might have to rule against the party launching - which is why he asks for expedited briefing and speaks to the mess it would be if he finds against
$LQDA.
After the initial briefing, he sees that he has a route to find for
$LQDA on Claim 14 and Claim 1, which is the case, but he still has these outstanding dependent claims.
That fall, the solicitor general asks that the SC take up Hikma (this being Andrew's prior case and one that
$UTHR cited in their brief is likely one he is following). He knows that if the SC takes it up and reverses the Federal Circuit court, he has a clean shot on the murkier dependent claims and a much more thorough opinion. He also knows that his ruling at this point is not going to affect the commercial realities and equities and so he is not rushed. Might as well wait for this ruling to come out. So he takes his time and now we finally have this ruling and so he has all the pieces he needs.