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Only takes 4 to accept the case
S—
Yeah but it is curious the market has not reacted at all to the preliminary news, which has been reported as a done deal.
B
Thanks R, very helpful
B
What the prior art taught is at least in part a subjective inquiry, as is confirmed by the fact that parties hire experts in the field to opine on what was taught by the prior art. If it was not in part a matter of opinion, there would be no reason for experts to opine. Expert testimony is only allowed if it is helpful to the trier of fact in deciding factual questions outside the ken of an ordinary bloke.
R—
Could not agree more.
B
HK—
With all due respect, hyperbole like “tainted murder” evidence is not going to assist any of the readers of this board to assess the R60 motion and its prospects for success.
Your passion for the issues is clear. I have passion for the issues too, and am doing what I can do to test and probe the arguments to make them as strong as they can be.
Peace brother??
B
HK—
My comments are not intended as an attack on anyone or anything. I am on your side.
I am presenting all the questions the advocates in support of this motion will have to face before this is over.
This is discourse, not war.
A
R—
Your hypo involves objective facts and proof of perjury regarding the facts. No experts involved because the question is not a matter of opinion.
Obviousness is not an objective fact, it a subjective legal judgment as to what a POSA would have learned from the prior art. The new experts are brought in here to provide a new interpretation of the prior art that was not presented at trial, but could have been presented. AMRN could have presented these experts at trial.
The best argument under R60 is the cropped table, but again, AMRN could have pointed out that Hikma submitted a cropped version of the table in post-trial filings, but it did not. Still I think the Court will be mad at Hikma for this move, even though the full table was in evidence from the trial. The question in my mind is whether this piece of evidence alone, if thrown out, will change the result.
A
M—
That sounds very much like a re-litigation of the merits, which R60 is not for. Otherwise cases would never end. What is the response to the court’s question why the case should not be subject to this rule?
Also, the trial was largely a battle of the experts. With each side free to present their best case. Why should the court open the case back up to yet more expert opinions that were not but could have been presented at trial?
A
M—-
The problem you have is that obviousness is not a purely objective question. It has subjective elements that a trier of fact must evaluate and weigh based upon the evidence.
If the legal question depended on objective scientific facts, you would have a much stronger position. But it does not.
I’m a skeptic but I wish you good luck.??
B
Yes, the market would assess what that means for sales, also keeping in mind the generics can appeal such a decision by Du.
Not sure what that translates into for shares.
B
R—
The point is that focus on the legal front is great, but it only matters to shareholders if legal success translates into sales, as sales are the key to share price. Those with an interest in truth and justice I appreciate, but as an investor I really only care about share price.
B
L-
Best comprehensive post I have seen on this to date.
Unless the SCOTUS takes this as the right case to fix the screwed up secondary considerations jurisprudence, the chances are very low.
That is not to say I do not appreciate all the efforts on the R60 front, which are admirable. Appreciation does not equal confidence.
B
HK—
No AMRN’s fate depends on sales, not legal rulings.
The legal rulings can help in the long run, but they won’t create sales.
B
M—
I read the 60b motion and think it is a really solid piece of work. Thanks very much. That said, if I am the judge I am thinking why was this was not presented to me before. Federal Judges are like all other busy professionals, they have to be able to rely on the people who give them the input material that goes into their decisions. Finality is a really strong hill to climb here.
Hopefully she will be so pissed off at Winston & Strawn and the Covington lawyers who did not do their jobs she will agree she was bamboozled.
Anyhow, your dedication and good work is appreciated.
B
North:
It’s a real possibility because they look to the SG for support in figuring out what the most important current issues of federal law need attention from the top.
The uncertainty because of the split on the FEDCIR is not good for the economy or the law. Should be fixed and this case is a good platform for it.
B
8–
R60 mistake obviously can’t be broad enough to cover all mistakes a court might make, as that would make it a second bite at appeal. I think you will find it is interpreted very narrowly. Regular Court mistakes are supposed to be raised and fixed in appeals.
B
Z—
I’m hoping SCOTUS will be open to taking this case because the lower courts have been struggling and disagreeing about how to apply the Graham factors, with major implications for patent validity. Also hoping they want a break from the onslaught of political cases recently and are more open to this type of case with important law at the center, not politics.
A
8–if no fraud, mistake is thin because the mistake recognized by R60 is clerical mistake in judgments, not a mistake by the court in interpretation of evidence. I am skeptical there is a viable argument for R60 mistake here, but hope I am wrong.
B
I happen to think we need less drama and more wins in court.
Nice work RAF, please send a link to result.
B
Amici are usually not parties with a direct financial interest in the outcome. Amici means “friend of the court.” The idea is to give the court the full broad perspective, beyond the interests of the parties with direct stakes.
Waxman is Best of the best.
With the fine amicus in support of cert they have a fighting chance, especially with a court that leans right these days.
B
Hopefully we will get a decision after RE-hearing for GSK that clarifies what exactly a generic can and can’t put in a skinny label to stay in the safe harbor created by Hatch Waxman. That will hopefully be helpful to AMRN against Hikma as that claim I believe is based in part on the Hikma label.
Wow, that is an exceptional brief supporting AMRN’s position in the SCOTUS.
ST—
No, SCOTUS takes cases for a variety of reasons, not only because they think a lower court got it wrong. The last case I argued at SCOTUS we lost 9-0 because in hindsight, it was clear the court wanted to make the ruling of the court below the law of the land.
B
Pride
S—
SCOTUS would only hear an appeal from the Federal Circuit in this kind of case. And they would have to grant permission to appeal, which gets granted in very, very, very few cases. You are better off buying a lottery ticket than expecting the patent invalidity decision from getting to SCOTUS.
B
ST—
I do not believe K was a big part of the court’s decision on what prior art taught a POSA. The K study is only mentioned in passing in the court’s conclusions, which rely primarily on the teachings from Lovaza and Mori. The K study is by no means the lynchpin of the decision.
B
Try not to fall in the hole kid!!
Was beautiful on the top of Killington mountain today. New snow softened up the skiing nicely for my old bones.
B
There is a very strong policy in favor of finality of judgments. For obvious reasons. We don’t want to relitigate civil cases endlessly any more than we want to relitigate elections endlessly. That is why the grounds for R60 relief are very narrow and hard to establish. Very rare to have a judgment opened up under R60.
B
We’re drinking Conehead IPA here in VT.
Ok, well, good luck
What is fraudulent about the Mori evidence? This is not a second bite at the apple people!
You have to read the whole decision, not selected portions; the decision is not based only on K, it is based on several elements of prior art
Even if the court buys that there was fraud in connection with the cropped K table, that was only one part of the evidence relied on by the court for obviousness. My read of the court’s decision is that K was not critical to its ruling on obviousness.
Not trying to be Debbie downer, but proof of the fraud you claim does not necessarily change the result.
B
So the fraud was submission of the cropped table, which is different from the trial exhibit, with the intent to cause the court to accept an erroneous interpretation of the evidence, which could not be supported by the actual exhibit.
Is there a plausible explanation for why AMRN did not argue this in its proposed findings and post trial submissions? This is obviously going to be the court’s first question, right?
M—being devil’s advocate, proposed findings are not evidence. I have not gone back to the trial record, but presumably the full K table was put into evidence by the generics, so that evidence was before the court. It was open to AMRN to argue this point to the court when the generics filed their proposed findings. But we don’t know why they did not. It was also open to AMRN to argue the point on appeal that the trial court decision was based on an erroneous interpretation of the K table.
What am I missing?