Thank you Kiwi. Yes, Mori, as well as Kurabayashi, were the cornerstones of Judge Du's decision. I asked HK at the very beginning of our collaboration on this project, that if we knock out Mori and Kurabayashi, is would that defeat prima facie obviousness?
HK confirmed that to be the case, so we have built the core of argument around the contention that if we eviscerate Mori and Kurabayashi, Defendants cannot meet their burden of clearly and convincingly proving prima facie obviousness.
Now you ask an excellent question that has been discussed extensively, and will likely be raised by the Court, namely, why did Amarin not file Rule 60? We know for a fact that JT inquired to his attorneys about filing Rule 60, but his attorneys told him that it was not worthwhile.
We don't know the attorneys' reasoning. Some have suggested that the lawyers are cynically covering up for their trials mistakes which the Rule 60 exposes. Perhaps they have true doubts about the merits and viability of the Rule 60. Perhaps they just prefer to focus on their appellate avenues. Perhaps they want no further part of Judge Du on grounds that she will never rule in their favor no matter what they say.
My view is one of vision. We have the vision of how to victoriously get to the finish line via Rule 60, while they did not have such vision. The key here is that we have HK, and they do not. HK figured out the entire puzzle, something that all of the lawyers and experts on both sides, as well as Judge Du failed to do.
HK solved the puzzle in terms of the statistical analysis, and then brought a fellow Cambridge mate (Dr. Jarvis), to confirm not only his analysis, but that of Dr. Bhatt and his co-authors. HK was also the one to recognize Heinecke's potential Claim Construction escape route, and the critical importance of closing it off. I then supplied the law to support the scientific and statistical analysis.
Amarin and their lawyers lacked the vision to see this clearly. Lawyers can be very bright and experienced, but still lack the intangible of vision with regard to a particular path. Due to that lack of vision, Amarin has not filed the Rule 60. By way of contrast, we have the vision.
AI
