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Ork—
I agree with your analysis and am equally floored. Anyone that has practiced law very long knows that sometimes trial judges just get it wrong, even terribly wrong. That is why appeals courts exist. This appeal will be focused mostly on the legal conclusion RE: obviousness, which is key to the chances of prevailing on appeal, and always gives the party appealing a fighting chance, even more so in the really complex, tricky world of patent infringement.
Thanks for your thoughts.
B
I think she made a classic largely subjective judgment based on hindsight bias, which the secondary considerations doctrine is designed to prevent. But then she did not look at the secondary considerations correctly, as the Markman piece explains well.
This court is certain to flyspeck this decision as they will have been informed by the briefs or otherwise that this decision crushed this small company, based on a highly questionable analysis of obviousness.
Yes, this is the primary check in our legal system on trial courts making flawed legal decisions, which is what this ruling is.
Trial judges just get it wrong sometimes, and there is 100x the legal horsepower in patent law at the Federal Circuit.
If you look at their track record, they do not have any problem reversing trial judges on obviousness questions because it is a tricky area that is fraught with “hindsight bias.” That is why the whole secondary evidence doctrine exists. The Judge used a very novel approach to weighing the secondary evidence, which will be one of the core parts of the appeal.
No Trump appointees on the Federal Circuit Court.
12 judges, about evenly split between Republican and Democratic appointees.
Appeals get assigned randomly to 3 judge panels.
No, all patent appeals go to the Fed. Circuit in DC.
Really dude? Educate yourself on the legal process a bit before clogging up the board with your emotive stuff.
At least one year, could be 2.
Right, but the purpose of an appeal is to make sure that a crappy analysis by a trial judge does not stand.
B
Appeal Strength
The Court of Appeals for the Federal Circuit will hear this appeal. Very unlikely it would go to the SCOTUS from there as they take very few cases.
It has 12 judges, roughly half are republican appointees, roughly half democratic.
From my research so far, the Court has no difficulty reversing trial court or USPTO rulings that a patented invention is obvious, where appropriate.
The standard of review allows the court to review the ultimate legal conclusion on obviousness de novo, meaning “anew.” There is no deference to the trial court on this conclusion, and the cases also make it clear that “hindsight bias” absolutely cannot be used in making this kind of ruling. The factual findings underlying the ultimate legal conclusion are reviewed under a more deferential standard; they must be clearly erroneous.
This means that the Circuit Judges will make their own judgments on whether the patented invention was obvious based on prior art, but they will be largely bound by the trial court’s findings as to the state of the prior art and other underlying facts.
De novo review is the broadest possible standard for appellate review. This is a key point because appeal outcomes often turn on the standard of review. Having the benefit of such a broad standard is very helpful to Amarin here.
Keep the faith.
B
NTP—
Isn’t there also a questionable assumption underlying the notion the generics will be able to displace Amarin sales by cardiologists using off label scripts to treat cardio patients?
Are cardiologists going to prescribe a cheaper alternative that has not been approved for the cardio indication? What about their liability risks? Docs, please weigh in.
Or is the assumption being made that generics will apply for and get their own cardio indication? But don’t they have to invalidate the Reduce It patents first?
B
It’s not about whether anyone loses out on a wonder drug when there is a generic alternative. The law that f....ed us is designed to lower drug costs overall by giving generics a chance to challenge certain patents.
It’s about showing why VS is entitled to patent protection, which it is.
B
If they use Covington for the appeal, not a good sign.
They need new fresh eyes and brains on the problem.
Does not seem the Covington handled the experts all that well.
Good news is obviousness is an issue of law that gives the court of appeals some leeway.
Hard to believe that AMRN can’t do anything about that, but have no reason to disagree.
Can someone please explain why this decision, about invalidity of old narrow patents based on a mono therapy aimed at treating severe TGM above 500, with no other drug involved, is a problem vis a vis the Reduce It patents that involve a completely different indication: using 4 g per day of Vascepa in combo with statin to reduce CVD events.
The decision goes out of its way to distinguish the Reduce It patents that are not at issue in the case.
Key point : No decision has been made on validity of the Reduce It patents.
Maybe those patents are now more exposed, but that case has not been decided, and we are a very long way from that happening.
Looking forward to more thoughts from patent folks on the extent to which this exposes Reduce It patents.
B
Next move by Trump administration will probably be to announce a wall to be constructed on the Florida border, to keep infected people out. With no expectation this will actually happen, but just for a headline. This is what leadership looks like now from the executive branch.
Unless it’s your parent or other loved one that goes down dude. Get a clue.
How easy it is to sit with a smart phone and pontificate about the extent of human misery. Maybe you should go volunteer in an ER?
It’s possible but not likely.
Zip—are you saying the Japs had our codes so FDR could not alert his generals? This is hard to believe given the time involved and other ways to alert that could not be compromised. Just hard to understand.
A
Would think you would do that if there is anything to list
Only thing I can think of is cutting off travel from China early, that was a good move.
Giving Pence a big role was also smart, although it’s not clear he has much real authority.
The administration has also had to defer to the people that know something about this, which is good, but then let the prevaricator in chief undercut their messages, unfortunately.
I think the answer is for local authorities to just send out the cops and national guard people out to help keep people inside. Ignore whatever Trump says, it’s useless.
Larrybirdlegend, only because the real Larry is my favorite hoops player of all time, and I’m jealous he took the name.
He’s also on the ball ??
KG—are you telling me you would not be screaming for more ventilators if you were in his shoes. Come on man!!!
B
F—there is no official date or deadline. Judges give estimates all the time when a decision will come out, but things can change, and have changed. May not be until after 3/31 but should be in that ballpark.
B
JL-many people including Bill Gates have been warning for years that we need to prepare better for pandemics like this. We all failed by not pushing our public officials to spend more money on this, rather than other things.
Hopefully we learn our lesson from this one.
B
Should be fairly obvious that a country the size of the US should have bigger capacity for dealing with this kind of public health emergency, as compared to a country 5 or 6 times smaller, no?
You have to have more hot dogs in the hopper to satisfy people at a Red Sox game than a game for their AA affiliate, no?
Seems like simple math, no?
We’ll have wait for the investigative press to tell us why the CDC made that fateful and tragic decision. Could be innocent but I doubt it.
Nice work rose
Roughly 1 in 142 South Koreans have been tested vs. 1 in 786 Americans.
This is also not the right comparison, but a convenient one for Trump because he can claim victory based on the wrong measure of numbers.
Inability to test our docs and nurses now is a gross failure in planning and execution by govt at all levels.
Per capita testing is what matters, not gross numbers, get a clue.
Really?
Who cares what models the media is pitching?
I just saw a ICU doc live in Boston saying they can’t get tested.
Real life, not media, really matters.
And your evidence of that is what, a Trump statement at a PC?
Even if you are right on a per capita basis, which I doubt, it is shameful we can’t even test docs and nurses at this point. When the history is written, we will learn exactly why.
Which means we really do not know much without more testing.
We don’t even have enough testing to test the docs and nurses. They are probably spreading.
Disgraceful for this country.
Could be
No prior notification to counsel. Counsel will get an e-mail when the decision hits the public docket.
The market can’t know what 50 governors will do. It does have at least a good read on what coming from DC.
FALSE DILEMMA
The people that frame the issue before us as a dilemma over whether we can survive economically or protect our health posit a false dilemma.
False dilemma are all based on a flawed assumption that there are only two choices.
There is a third choice of course. Follow the advice of the best experts and open the economy gradually to support business and employees as safety permits. Do this based on data and common sense, not politics or other agendas.
Let’s not get sucked into a divisive debate that is premised on a false dilemma. This challenge calls us to work together. Rise up to the challenge my friends.
Actually the president will not make a decision by himself because many public safety decisions get made at the state and local level, thankfully.
They tested widely and aggressively from early on. We are now catching up on gross numbers, but we have many more people.
Right, they should use health and econ. data to come up with a smart policy that allows the economy to function while protecting innocent people.