Robust ..... Holistic ..... Hindsight!!!!!
We have a new favorite Amarin word, hindsight. No other word so perfectly addresses the anguish, disgust, contempt, and disbelief experienced by Amarin longs over the past six weeks since the Du-debacle. The lower court had a duty as a matter of law to not use hindsight, yet that is precisely what she inexcusably did in ruling so monstrously.
My favorite part of Singer's masterpiece is at pages 46-47, where he lays out the concepts that must be rigorously applied to avoid hindsight based obviousness analysis, and then slams the learned jurist in a sneering, contemptuous, but poetically beautiful way, "The district court's analysis of both these concepts was anything but rigorous." Boom!
Right below that, Singer goes for the jugular with the argument that I thought was the low-hanging fruit, namely that there is no way that any reasonable, objective person, much less an experienced judge, could rationally conclude that the generics met their elevated burden of proving obviousness by clear and convincing evidence. (clear and convincing evidence in bold)
"The problem for Defendants, and the district court, is that there is nowhere near enough evidence in the record to meet that high burden, and the district court legally erred in concluding otherwise. Indeed, the only way the district court reached its conclusion was through legal and factual error that ignored the critical teachings in the art ....."
Nailed it. Could not have said it better myself. This is the most direct reason why this appeal should be won.
At first glance, my only issue with the Brief, is cosmetic. For some unbeknownst reason, the top patent lawyer in the country, working for a big sophisticated law firm, inexplicably formatted the Brief with a left justification instead of a full justification.
To someone like myself who writes Briefs for a living, this is a sloppy eyesore, but this cosmetic issue should not detract from the most important part, namely that the substance has been brilliantly and persuasively articulated.
