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Sunday, March 28, 2021 11:02:46 PM
What the prior art taught is at least in part a subjective inquiry
And that is why I do not object to pretty much anything being put forth as prior art: Mori, Kurabayashi, Lovaza PDR, or Green Eggs and Ham. What I object to is is stating that they stand for more or less than they do.
- Mori stands for DHA and EPA individually decreasing triglycerides and DHA increasing LDL-C in individuals with mild hyperlipidemia
- Kurabayashi stands for EPA combined with estriol lowering Apo-B over time in hyperlipidemic, menopausal women.
- Lovaza PDR - stands for a specific combination of DHA and EPA reduces triglycerides and potentially increases LDL-C
- Green Eggs and Ham stands for sometimes people have irrational reasons for their likes and dislikes.
You can combine those 4 pieces of prior art in any fashion and they do not (and should not) make it obvious that high purity EPA will lower triglycerides without raising LDL-C.
To the extent that this becomes an esoteric discussion with the court on statistical principles, I think it does not help the case. Nor do I think assigning blame serves much purpose. The Court's judgment indicates that it imbued both Mori and Kurabayashi with more import than was warranted in its prima facie obviousness determination and in considering secondary factors. That is mistake. Simpler is better.
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