Introduction
After reviewing the post-trial Briefs, it is my formal legal conclusion that we have every reason to believe that Amarin will resoundingly prevail. To paraphrase former Giants coach Jim Fassel, "If this is a poker game, I am shoving my chips right in the middle of the table. I am raising the ante. Amarin is going to win the trial. Ok? Amarin is going to win the trial."
Rather than writing a lengthy analysis repeating the totality of the reasoning, I incorporate by reference and suggest everyone review, Bubba's comprehensive and thoughtful analysis from this morning. After posting, I also reviewed Hamoa's equally thoughtful analysis, which should also be relied upon in concluding that Amarin will prevail. Bottom-line, in a nutshell, idiot-proof reasons why Amarin prevails:
Infringement
Defendants' "12 week" argument is devoid of merit. Both sides' experts recognized that for Vascepa to be effective, long term administration is required.
In some cases, it takes awhile to see results as shown in R-It. In others, are doctors really going to tell their patients after 12 weeks, "Hey go live your life, you are now invulnerable to high Tri's, and CVD". Can you say medical malpractice when that patient has a CVD event?
As pointed out by others, Judge Du recognized the absurdity of this position during the SJ, but rather than grant Amarin SJ, she gave the Defendants the opportunity to rebut the 12 week argument with expert testimony at trial. Judges will often deny legitimate SJ positions out of an abundance of caution in an effort to be overly fair. Defendants were given their shot, but missed.
As stated in Amarin's Brief, "Defendants' non-infringement case largely amounts to rewriting Federal Circuit precedent." A District Judge is not going to rewrite Federal Circuit precedent.
Obviousness
This is an even easier claim to decide. Prior to Amarin's EPA formulation, all other Tri lowering drugs raised LDL cholesterol. All of them. Not to mention the 25% CVD risk-reduction which sources too numerous to list, have recognized as "paradigm shifting". And Defendants are telling us that this was "clearly and convincingly" obvious? No sirree.
I am admittedly an Amarin late-bloomer. I was not in a position to invest until the summer of 2018, when I finally made some money after winning the famous case against the Giants and Eli Manning. My client then put me into contact with a certain broker who is a well-respected poster on this Board, who then put us into Amarin. September 24 happened, and the rest is history.
Point being, those of you who have been here infinitely longer, were Vascepa's amazing paradigm shifting effects ever really "obvious" to everyone, or did it take a lot of money, hard work, and trials to finally prove the majesty of Vascepa?
Appeals
Having established a strong likelihood of victory at the trial court, I would like to address the efficacy of an appeal by the generics. Barring settlement, no matter what happens, there will be appeals.
I did some research. The most recent data shows that civil appeals in the federal courts have an 11% chance of success. Now in the overwhelming majority of cases that do not settle, there are four potential dispositions: (1) Dismissal on the pleadings; (2) Summary Judgment after discovery, but before trial; (3) Trial with a jury verdict; or (4) Bench Trial, which is what we had here.
Of all those cases, the least likely to be reversed is a Bench Trial. As a general rule, the appellate court will defer to the trial judge's evaluation of the witness testimony and her feel for the case. This is because the trial judge is there in the courtroom and in a much better position to weigh what is being presented.
Her factual findings will only be disturbed on appeal if they are clearly erroneous, and the error was significant enough so as to prejudice the appellant to the point where the appellant is deprived of a fair trial. The only real shot on appeal is if the trial judge makes a material legal error, but even then, unless the trial judge is completely off base, the trial court will be affirmed.
While it would be nice to have full and complete closure with a late settlement, nobody should be alarmed by the prospects of appeal.
Conclusion
There has been a lot of heated (but arguably legitimate) criticism of JT on this Board for being so ultra-conservative to the point of being too conservative and unproductive for our interests as Amarin shareholders. Putting aside the merits of that contention and bringing it back to the litigation, are we to believe that with this all-important make or break matter, JT is all of a sudden Riverboat John, the reckless gambler? Does that make any sense at all?
Whatever one wants to say about Thero and Kennedy, they are smart, successful people who have guided Amarin through much adversity, and have to be accomplished in order to achieve the positions of CEO and General Counsel in a company like Amarin.
Chris Sipes might be the foremost patent litigator in the entire country. This is our braintrust spearheading the litigation. We only see what is posted on PACER, and what we hear from a commentator here and there. We do not live the litigation. We are not granted access to the conference calls, the meetings, the strategy sessions, the trial war-room, the court appearances, the privileged memorandums evaluating the case. Our braintrust, on the other hand, has lived the litigation.
Given the totality of the circumstances, considering what is at stake, and the caliber of the people spearheading the effort (who already prevailed over the FDA, which is not an easy accomplishment), one has to deductively reason that they know what they are doing, and they have this under their control.
We have the facts, law, policy, common-sense, logic, and justice on our side. The all powerful dispensations of providence are with us.
In conclusion, may I quote Thomas Paine, "Tyranny, like Hell, is not easily conquered. Yet we have this consolation with us. The harder the conflict, the more glorious the triumph." My fellow Amarinians, we are on the verge of a glorious legal triumph. Not because I want it to happen, but because the facts and law compel it to happen.
With the utmost truth and sincerity,
Michael S. Kasanoff, Esq. aka "marjac"
