MRC Legal Analysis (8/12)
I am responding to MRC’s twitter posts from today and I trust that it will reach his attention. If I recall correctly from a couple of months ago, he no longer uses iHub.
The purpose in my post was not to engage in an in-depth legal discussion, rather, to demonstrate the blatant inaccuracies and conflation in MRC’s posts related to the patent litigation. This is transferrable from my conversations to other aspects of his analysis (scientific, etc.).
But, I respect the response and believe it warrants a reply.
MRC’s legal analysis tracks the state of the law sufficiently to a degree. But there are gaps in understanding and analysis. Particularly with respect to the standard of review by which the court will analyze the motions. Worse yet, a motion for summary judgment does not simply track the law. Rather (and in lay person terms) it marries the facts established in the record with the law. If no genuine issues of material fact exist, judgment can be granted for the moving party as to certain claims.
In this case, as gleaned from the briefs and supporting documents, discovery has taken place. Expert discovery has closed. Claim construction has concluded, and from the record, gone very favorably for AMRN. Claim construction is the process by which a court interprets the meaning & scope of patent claims. It frames the dispute for the court, and in complex cases like this, claim construction is the spine of the litigation.
AMRN seeks partial summary judgment for the purpose of narrowing the issues that are presented to the factfinder at trial. AMRN’s claims are strong and I sincerely doubt the company has any hesitancy about trying the case, but narrowing the claims and defenses down is always a benefit. The essence of AMRN’s motion is that Defendants’ experts failed to provide opinion testimony (which is the evidence used in cases of this nature) to support the Defendants’ affirmative defenses and counterclaims that arise from certain sections of the pertinent code. Since Defendants are left with no evidence at the close of expert discovery to support these defenses, as a matter of law, the affirmative defenses are dismissed from the case and cannot be considered by the factfinder at trial. This is not court TV. If you fail to support a claim or defense during discovery, you can’t argue it during trial.
MRC references obviousness in a couple of his posts. This defense is not central to the motion. Defendants will be able to present this unconvincing defense at trial based upon its expert testimony. Rather AMRN’s motion on the merits is based as follows:
Invalidity Defense
Defendant has the burden of establishing the invalidity defense by clear and convincing evidence. Pause here – the clear and convincing standard is the highest of the general standards of proof. It is the most exacting standard. To the contrary, AMRN does not have the burden of presenting any facts to support the arguments contained in its motion with respect to Defendants’ defenses. And, as a general rule, expert discovery is required to support an invalidity defense. As cited in AMRN’s brief, it is well-settled that: “an expert opinion from one skilled in the art is generally required to [establish] patent invalidity in cases involving complex technology and non-intuitive engineering principles.” In this case, both parties have put forward definitions of a “person of ordinary skill in the art” that recognizes the complexity of this field, both requiring the hypothetical POSA to possess advanced medical and/or scientific training, as well as several years of experience treating blood lipid disorders.
Thus, it belies logic to conclude that an invalidity defense in this dispute involves technology that is “simple and easily understood” where the patent specification is within “the grasp of an ordinary layperson.” Defendants’ failure to produce expert testimony on this issue is dispositive and fatal to the defense, as a matter of law.
Anticipation Defense
Defendants again have the burden of establishing the anticipation defense by clear and convincing evidence. Reviewing the brief and the citations provided, the record demonstrates that Defendants’ expert report fails to opine that the asserted claim is anticipated. AMRN also argues (and supports the argument in exhibit 1) that defense counsel stipulated on the record at the expert’s deposition that the scope of his opinions are “not about anticipation.” The record also supports a finding that no other expert report opined as to the anticipation defense.
35 U.S.C § 112
As MRC correctly states, Defendants, infringers, have several other potential defenses available to them. The motion and references to the record support AMRN’s application and a full recitation is an unnecessary exercise here. By way of generalization, Defendants’ expert fails to provide opinion testimony as to the following defenses asserted: lack of written description, lack of enablement, or indefiniteness. Look through the record. It will be interesting to see the opposition to this motion.
I don’t completely understand the argument as posited in post 14. It appears to be an implicit indefiniteness argument being made by MRC, based upon the Defendants’ expert’s testimony. But this argument fails because Defendants’ expert is on record, in several instances, as conceding that he treated the claims as NOT indefinite in forming his opinions. Thus, without even touching the merits of this claim, this is a revisionist argument that falls short of the clear and convincing standard discussed above. In fact, the testimony in the record literally refutes it.
Finally, in my response to Post 3 last night, I inquired: “[w]hat is MRC even copying and pasting from?” I renew that inquiry now. What are you copying and pasting from? I never said that 99% of the time these motions are credible (post 7). I said, paraphrasing, that 99% of the time, parties are not filing frivolous motions. The context in which I said it related to delay tactics. And looking past the specific percentage, that position is concrete. Lawyers are simply not wasting client and public resources to delay litigation.
You completely discount the difference between a frivolous or credible motion and a prevailing motion. I understand that you have never practiced law, but the granting of a case dispositive motion is not a routine event. So, concluding in post 7 that “the majority of MSJs are denied” does not correlate with the fact that the motion was not credible or that the motion was a delay tactic. The moving party simply did not meet the burden of proof and the issue had to be resolved at trial. Your understanding of how litigation works is erroneous.
And, you realize that the statistics in the reference tables in post 7 actually detract from your position, right? AMRN is not seeking judgment on all of its claims, rather, only on Defendants’ affirmative defenses and counterclaims. If AMRN is successful, the case continues. To the contrary, Defendants are seeking summary judgment on ALL of AMRN’s claims. If the Court grants the motion, the case ends. By your own reference tables, this is a very unlikely outcome (“the majority of MSJs in general are denied”). In addition, what percentage of the motions cited in the reference tables were partial motions? Unclear. Even when granted, those cases continued, with a narrower and more digestable scope for the factfinder to consider at trial. And what percentage of the referenced cases took place in a jurisdiction different from the one where this case is pending? 100%.
Based on your own admissions, the likelihood of AMRN’s motion being granted is much higher than that of the Defendants. The merits echo this conclusion. Defendants will likely be left with less than one leg to stand on for trial.
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