LOL Singer comes out swinging:
Long on pejoratives, Defendants’ brief seeks to accuse its way to affirmance of the district court’s erroneous obviousness judgment. But no amount of rhetoric can cure the myriad defects with that judgment.
On the objective indicia, the district court found “clear and convincing evidence” of obviousness “as an initial matter” (Appx57) before addressing the legal impact of those indicia. This was error that had real consequences. Because it had already found Amarin’s invention obvious, the district court shaped the objective indicia evidence to fit its premature and flawed conclusion, nakedly devaluing the long-felt need and commercial success proven by Amarin; finding a lack of skepticism, praise, and unexpected results on grounds Defendants cannot support; and even pitting the objective indicia Amarin proved against those Amarin allegedly had not.
The district court’s errors in the prima facie case were equally case-turning. At the key juncture, the district court merely copied verbatim Defendants’ proposed finding that there was “no reason” for the skilled artisan to expect that LDL-C levels of severe hypertriglyceridemia patients responded differently to treatment than those with milder forms of the disease. (Appx60.) But this required the district court to ignore prior experience with niacin, fibrates, Lovaza®, and even diet, which showed the exact difference the district court found lacking. The skilled artisan does not behave in this fashion—rather, she considers the entire prior art for what it teaches.
