Email sent to Singer + Elisabeth (Amarin HR) this morning (I know it's a long-shot):
Elisabeth,
(Please forward to your Legal Team as well)...
The Appeals Judges asked Jonathan Singer to provide something they could use relative to the Novo case.
He tried very hard. No one argues that...
I read the Novo closing comments from the Novo Appeals Judge and I think we missed a chance on Wednesday that Jonathan tried to drive home to them (the bad Mori evidence.)
Below I pointed out to a friend where Jonathan may have been able to open a door for the Appeals Judges to grab onto…
(Not sure if it may weigh in the upcoming appeal to the Appeals Court.)
I am sure Jonathan is NOT HAPPY that they ignored the Mori problem (which is what Du primarily based her decision on) yet if you read below, maybe there is still a slim chance of getting Mori reviewed by pointing out what we all know to be the "red herring" in our loss (Mori)…
Please note that I am NOT an Attorney yet did take 2 or 3 Law classes at Drexel University and enjoyed them very much...
My comments to a friend:
There is a potential path that was mentioned in Novo's closing Summary by the Appealant Judge that said and/or implied had "bad" evidence been used that was intentionally compromised or used in favor of good evidence to bolster the Defendants case, a "But/For" review could have occurred.
Novo's Attorneys pointed out a problem with evidence that they felt compromised the Trial.
IN NOVO, THE JUDGES REVIEWED THE BAD EVIDENCE AND IMPLIED BAD EVIDENCE COULD HAVE CHANGED THE OUTCOME OF THE CASE..
In Novo: The Judge said in closing that the issue with the "bad" evidence (pointed out by Novo in their Appeal) was not enough to change the Obviousness determination YET it certainly would have in ours! Had Jonathan noted this and expressed it when asked how our case mirrored or did not mirror Novo, he could have said it was very similar (they knew it was) YET "BUT/FOR" the bad evidence introduced by the Defendants, this case would have had a different outcome as discussed in the Novo closing summary.
This potentially would have given our Judges something to grab on to (a pathway) seeing it was allowed and/or discussed in Novo.
(Dyke or Reyes said: There are cases already out there that we have to follow such as Novo. They wanted something to grasp.)
I know Jonathan hoped they would review Mori with (probably) the understanding that the Judges did not have to or maybe aren't allowed to review evidence in an Appeals case - yet the Summary in Novo apparently allows it... And his main point was "the bad evidence" effected the "weighing of the secondary considerations"...
I and everyone else heard him loud and clear!
(Maybe Amarin can use this in their upcoming appeal...)
THIS IS A "COPY and PASTE" RIGHT FROM THE NOVO APPEALS' CLOSING COMMENTS BY THE JUDGE:
START:
"Dr. Sturis was accused of failing to notify the PTO that the original test plan did not include his data calculations at 120 minutes. The Federal Circuit found it to be a nonmaterial omission because it did not qualify as “but-for” material. The Court explained that this was not a case in which adverse results were hidden in favor of more positive data, nor did the omission undermine the opinion stated in the declaration."
END
In our case the "cropped document showing Adverse Results" certainly undermined our case!
I apologize if my interpretation of any or all of this is off-base yet it doesn't appear so...
Hope this helps!
