Amarin Corp Plc (AMRN)

[HinduKush]

Otherside,
Thank you this was a very instructive read..interesting how we see for the defendants (generics Sun and Caraco pharma) Charles B Klein (suprise, surpise).
I agree:

It is truly "error to find a claim obvious before . . . consider[ing] the objective considerations,” or to shift the burden of persuasion to the patentee at any point during its obviousness analysis."

Lets hope the CAFC sees this again with Amrn's Appeal case.
Clearly the CAFC including Judges Prost Newman Dyk felt that just because a determination of prima facie obviousness is made, doesn't mean you then set that decision in stone and wall it off by negating or ignoring or weighing against each other, the secondary objective criteria. These secondary objective criteria are (1) Objective and (2) Secondary only in sequence of consideration not in importance for final obviousness determination. They are the watchmen, the yeomen that guard againgst hindsight bias. One doesn't just throw away the secondary consideration of wearing a seat belt for road safety, just because one made a prior primary obviousness determination of "low safety risk" based on driving a low traffic road on a sunny day. ...Hindsight bias is a poison and the court must avoid it. The skillfull presentation of marginal trivia (that too of dubious scientific quality) as a cumulative evidence of obviousness to combine in the prior art, was the mess that Du got herself into.

In re Merchant, 575 F.2d 865, 868–69 (CCPA 1978); see KSR,
550 U.S. at 421 (“A factfinder should be aware, of course,
of the distortion caused by hindsight bias and must be
cautious of arguments reliant upon ex post reasoning.”

I found this part encouraging from the opinion of these CAFC judges:

Novo next argues that even if the district court correctly allocated the burden of persuasion for obviousness, the record evidence did not support a conclusion of expected results. On appeal from a bench trial on obviousness, we review de novo the court’s the ultimate legal conclusion of whether a claimed invention would have
been obvious, and review the underlying findings of fact for clear error. See Golden Blount, Inc. v. Robert H. Peterson Co., 365 F.3d 1054, 1058 (Fed. Cir. 2004).

Oh please do so again your honors...
HK