I could be wrong yet I read their conclusion/summary to say (in my words) when they found the Patent to be so profoundly obvious, the Judge didn't need to consider Secondary Considerations and the Secondary Considerations would not have changed the outcome no matter how strong they were.
The part of their Conclusion that still haunts me today is where the say if there was "But/For" evidence (their words) the Case would possibly have been reconsidered. They were referring to a claim by Novo where the Generics "accidentally" left out evidence or something to that effect that would have bolstered Novo's case.
The Judges determined that it would not have changed the Obviousness determination meaningthey agreed that they intentionally did it yet it was weak or non-material.
"But/For" in our case (relative to their Summary) meant:
"But For the fact that the Generics cropped the Kubashi study that helped bolster their case, we find in favor or the Plaintiffs!"
AND:
"But For the fact that Judge Du misinterpreted Mori which helped bolster the Defendants case, we are overturning this case!"
The Kubashi example is spot on to the language used in the Closing Summary of Novo.
What they were saying again was had the Novo Claim included bad evidence or an intentional omission of evidence by the Generics that seriously worked against Novo, they would have taken that "But/For" evidence into consideration.
In the Novo case they did not feel the omission of something by the Generics (Novo's claim in the Appeal) would have changed the Obviousness decision!
The cropped Kubashi absolutely would have in ours. It would have taken on less weight which in turn would have made our Secondary Considerations that much stronger!
That's why Singer kept saying the evidence was wrong YET the Judges didn't understand him...
When they asked how "whatever" Singer was saying applied to Novo, had Singer said:
"I am referring to your written comments in your conclusion in Novo that you would have considered "But/For" evidence..."
...I believe that would have opened up a whole new door for Kubashi and possibly Mori to be explained YET Singer missed that chance in both the Appeal and the En Banc submission.
That is why our Amicus is so strong. I just wish it included the Novo reference to "But/For" evidence meaning I wish we used the Novo Appeals Judge's own words against them knowing they wanted some reference back to Novo. I believe they feel Novo is the latest Precedent Setting Case relative to how Secondary Considerations are considered...
If they really feel strongly about having the wool pulled over their eyes, they WILL consider our Amicus Brief!
