Amarin Corp PLC (AMRN)

[niall75]

My prediction is a Remand decision with wording along the following lines:

This Court does not have sufficient information from her written opinion to be certain, beyond any doubt, of the sequence of Judge Du’s mental reasoning as distinct from her written opinion. Nor can we be sure that, if indeed she did use incorrect sequencing, she would not have reached the same conclusion based on the evidence before her had she followed the correct sequencing.

Further, this Court, having not had the benefit of the direct evidence, is unwilling to overturn the decision because Judge Du’s findings of facts, while potentially incorrect, are not in our view clearly and obviously incorrect, and the briefs/oral arguments highlight significant differences between the parties as to the underlying facts.

We therefore find that the case should be remanded to Judge Du for her to reconsider her decision, and the evidence, based on

(1) clearly separating out the obviousness argument from ones relating to secondary considerations,

(2) clearly first coming to an interim conclusion on obviousness without any initial contemplation whatsoever of secondary considerations,

(3) bearing in mind the very high burden of proof on the defendants when it comes to obviousness; and

(4) bearing in mind that even if she does reach the same interim conclusion on obviousness, she should then evaluate secondary considerations as a check against that interim conclusion, but without weighing them against each other.