I would just like to acknowledge the outpouring of support received from the Board today, and thank everyone who voiced support for the filing of the Misconduct Complaint against Judge Du. Each one of you deserves a personal thank you, but there are so many, I would inadvertently be mini-spamming the Board with all of the personal thank you posts. The support received today means more to me than words can ever express.
As for those of you who are in disagreement, that is perfectly fine. Reasonable people can disagree on strategy and tactics without demonizing each other. But I would like to take the opportunity to gently persuade why you are wrong, and why the chosen course of action has merit.
We should not get too bogged down arguing about the semantics of Vascepa v. Fish Oil. Nor should we get too bogged down on what Judge Due did not say.
What Judge Du said in pertinent part, is that she was “tutored on varied technical issues involved in patent cases such as learning . . . . the benefits of fish oil.” She made this statement less than a month after completing the trial, and a more than a month before rendering her hideously destructive decision.
But this statement is problematic and violates Canon 3A(6), because the statement is false. She was neither tutored on, nor did she learn about the benefits of fish oil. She was tutored on and learned about, the benefits of Vascepa (icosapent ethyl), a complex compound distinctive from fish oil.
How do we know this? Is marjac just making this up? No, we merely go to the section of Amarin’s web site entitled the Vascepa Difference, where the multiple benefits of Vascepa are completely distinguished from the non-benefits of fish oil in language easily understood by anyone with at least an elementary school education. The Stipulated Facts in the Pretrial Order likewise identify what she was being tutored on, and what she was learning about.
Why is this distinction important? Because if this trial was merely about fish oil as wrongly perceived by our learned jurist, then there is really nothing distinctive, non-obvious, or patentable about mere fish oil, at least in the mind of our learned jurist. In her mind, we can get fish oil anywhere, so there is nothing special about this fish oil patent on trial in her court.
So now my friends, through Judge Du’s revealing words in this post-trial interview, we have unlocked the mystery of why she ruled the way she did. It is as clear as day: “I’m not giving you [Amarin] a decade of patent protection so you can rake in excess profits from consumers and insurance companies on your fish oil. The public can get the same benefits if the generics sell it substantially cheaper.” Just like on the legendary Seinfeld episode where the Patent Nazi proclaimed, “No Patent for you!”
This explains the abject nauseating travesty which befell Amarin and its shareholders. I defy anyone to tell me otherwise, or come up with a more plausible, logical explanation based upon the evidence, as to the thought process formulating this Judge’s dereliction of duty.
So how do we get to a violation of Canon 3A(6)? All I have to establish is that the Judge’s remark diminishes the public perception that she was impartial. If after being made aware of the distinction between Vascepa, which provides multiple documented, FDA approved benefits, and fish oil, which provides no benefits in the context of the issues being tried before her, she still believes that she is learning about the benefits of fish oil, then reasonably objective members of the public would have a solid basis to be concerned about her impartiality, or lack thereof.
Especially considering that the Comment to Canon 3A(6) sets a heightened standard instructing judges to “take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality.” This is the essence of my Complaint.
Some of you have inquired what remedy might be employed. Judges and lawyers are subject to varying levels of discipline, from as mild as admonishment, to as severe as removal/disbarment. If the Ninth Circuit Judicial Council agrees with me, then the remedy could possibly be an admonishment stating that she needs to be mindful of Canon 3A(6) when making public remarks in the future. They could also direct that she recuse from any further proceedings in this case.
They can also deny that there has been a violation, but still direct in an abundance of caution, that she recuse from this case. Or they can deny a violation and dismiss the Complaint without granting relief. If they do that, it means that politics rather honor and the rule of law carried the day.
No matter what happens, I do not regret filing this Complaint for even a millisecond. The overwhelmingly positive feedback demonstrates that we have already won, and at bare minimum, our learned jurist is put on notice that she is being watched, and there is at least one lawyer who will not hesitate to hold her accountable.
What happened on March 30 (and in early 2020 leading up to it), is an absolute disgrace. My guiding principles are transparency and accountability. Thus far, nobody has been held accountable for March 30.
Today’s filing was the first step in the accountability process. Without a near-term buyout, it likely will not be the last. I fight for, advocate on behalf of, and stand with, the loyal Amarin shareholders who got shellacked on March 30.
