Amarin Corp Plc (AMRN)

[indialong]

The issue that will flip this decision at the Federal Circuit is that Du weighed secondary considerations against each other and found the balance weighed against Amarin.

That's not how secondary considerations work. They are not factors that are weighed against each other. Precedent does not support her approach to this analysis.

Instead the question to be asked is: Are there secondary considerations that weigh in favor of nonobviousness? Courts have considered secondary considerations such as the invention’s commercial success, long felt but unresolved needs, the failure of others, skepticism by experts, praise by others, teaching away by others, recognition of a problem, copying of the invention by competitors, and other relevant factors.

The existence of just one of these can be sufficient to support nonobviousness, but there is no need to meet all of them, or even several of them. The ones that do exist weigh towards nonobviousness. The ones that don't exist don't have any weight for or against. But she stated in her judgement that some of the secondary considerations weighed against nonbviousness. That's just not how it works. If the Federal Circuit flips this decision it will be because of this improper analysis.