HinduKush: En Banc Appeal:
I think we stand a chance there for the very reason you note in this Post!
(I'd love to hear your opinion on what you read below):
None of the (3) Judges understood Singer was trying to get them to understand first and foremost that the Mori and Kuri studies were faulty.
The Appeals Judges kept asking Singer what Du did wrong with the Secondary Considerations and what was different than Novo.
They JUST DIDN'T UNDERSTAND his argument was 100% based on them understanding the two studies were flawed first and foremost.
He should have basically just told them to Shut Up and listen while saying: "The two flawed studies made the Secondary Considerations seem important YET they mean nothing if you review the studies to see how Du misinterpreted them!"
I listened to a very similar Patent Appeal where the Judges listened and tore apart the evidence used to incorrectly decide the case and overturned it.
Even the Novo trial summary allowed "bad" or "intentionally altered evidence" to be submitted if it could change the original verdict - see below in Bold.
I just do not think the Judges considered for a second that the Trial Judge could make a mistake with evidence.
In the En Banc Appeal, the 1st page lists the 4 or 5 complaints that ALL (9) remaining Judges MUST read and digest to determine if they will allow it to proceed.
If they allow it, Singer gets a redo with (9) Judges listening without the (15) minute time-clock running!
I honestly think Singers delivery last week was tripped up by a single loud mouth Judge who failed to listen! He already made up his mind that this Appeal was only about Secondary Considerations!
For those who disagree: Listen to Singer say over and over: Please let me make it clear - its the incorrect studies that caused the Secondary Considerations to seem important.
If the interpretation of the Evidence was done correctly, the Secondary Considerations would not be needed!
Singer totally confused them when he said: The incorrect evidence "bled over to the Secondary Considerations!"
I had NO IDEA what Singer meant until I listened two more times and kept hearing him say: The evidence was misinterpreted!
The En Banc appeal will expose the misunderstanding of the (3) Judges... I think Dyke (as an Appeal Judge in the Novo Appeal trial) told the other two: "I got this!"
Yet he completely misunderstood Singer!
I didn't!
And here is where Novo allows bad or intentionally tainted (cropped) evidence to be re-evaluated. This is 100% 'cut-and-paste' right from Novo's Summary in the final Appeal Judgement:
"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."
In the above: Novo said the Defendants intentionally omitted evidence that would have helped Novo's case. The Appeals Judges said the "evidence" would not have changed their Obviousness decision (again in the Novo case) YET they said if evidence was intentionally changed or omitted AND effected the outcome of the original Trial, that would be a case ripe for an Overturn or Remand...
JUST LIKE OURS AND JUST LIKE SINGER TRIED TO TELL OUR APPEAL JUDGES!!!
I think the En Banc Appeal will be clear and much more revealing to the other (9) Judges!
If not, I'm moving to the Planet Mars!
