Amarin Corp Plc (AMRN)

[HDGabor]

M- (ps: rosemountbomber / 373560)

I thought Du using the “prima facie” approach rather than the “Graham” approach was at the core of her procedural error (Graham approach = Totality?)

It is not B&W, it is not a sure thing. Meanwhile

The Court first discusses Defendants’ prima facie obviousness case, … and then discusses each of Plaintiffs’ proffered objective indicia of nonobviousness.

she made a conclusion as

in view of all four Graham factors (including alleged secondary considerations) considerations), Defendants have proven by clear and convincing evidence that all Asserted Claims are invalid as obvious under 35 U.S.C. § 103.

Furthermore, Judge Du considered "unexpected benefit" (a secondary consideration, LDL-C effect) in the in prima facie analysis, in the "Defendants’ prima facie obviousness case".

Maybe worth to raise it … (but I am not sure it will be). I expect - as a core / main arguments - something like:

(i) Despite Judge Du determination / view, the the PTO have all material facts before it, its considered judgment did not lose the force, the patents were granted based on all prior art.

(ii) Kurabayashi do not suggest the Apo-B reduction
(a) it was considered by the PTO. Meanwhile the PTO analyzed the Apo-B claim and cited 3 studies (Connor et al, Fisher et al and Park et al) regarding the predictability of lowering Apo-B with 96% pure ethyl EPA in patients with TG levels above 500 mg/dl, did not cite Kurabayashi since - most likely - did not consider it as relevant, as a study that teach, suggest or motivate anything / anybody
(b) the Apo-B reduction compared to the control group was not SS

(iii) Judge Du agree with / determined the "Long-felt need" … but "degrade" as the prior art would have motivated a skilled artisan to practice the asserted claims with a reasonable expectation of success … the solution was obvious.
It is a clear and enormous error.
The primary function of any SC is to avoid hindsight bias … and not vica versa (prima facie determination function is not to negate any SC).
I am not aware of any reason (e.g. blocking patent owned by other) that validate the Judge view / opinion: the prior art would have motivated a skilled artisan to practice the asserted claims with a reasonable expectation of success … but nobody tried to met with the existing long-felt need … nobody "wanted" the commercial success.

(iv) SCs have weight against prima facie obviousness … not against other SC. Lack of a given SC does not say anything about obviousness, does not make existing SC weaker.
(a) "long-felt need" (supported with "commercial success") overcome, stronger than the prima facie … the patents are not obvious.
(b) "long-felt need" (supported with "commercial success") and "unexpected benefit" overcome, stronger than the prima facie … the patents are not obvious.

We will see within a few days.

Best,
G

ps:

I am wonder if HD used one too many negatives?

??? Is not it - above - balanced?