lizzy, the short answer is that while Amarin owns the patents, the shareholders own Amarin.
Because the shareholders own Amarin, they are in privity with Amarin. Privity, along with fraud, are the noted exceptions to the general rule that Intervenors lack standing to intervene to file a Rule 60 motion.
Gaston Kroub's observation and conclusion is nothing more than confirmation bias based upon Judge Du's erroneous ruling. Because Judge Du ruled the way that she did, he accepts the ruling as authoritative. He probably is just reporting on the ruling, but did not review the Briefs or engage in his own independent analysis of the caselaw.
It must also be remembered, that as a matter of law, Rule 24 motions to intervene are to be liberally construed in favor of intervention. Judge Du instead, took a very narrow, constricted view of Rule 24, in order to deny intervention. This was an abuse of discretion.
Our intervention is very much akin to a shareholder derivative action. In Judge Du's world, shareholders would never have standing to pursue such actions. But the fact remains is that as a result of the mistakes and other wrongdoing resulting in the invalidation of the patents, the shareholders suffered real damages as evidenced by the 70% drop in the stock price on the very day the ruling was announced. As we all know, the stock has never recovered. This is a real injury conferring standing upon the injured.
The depravity of Judge Du's decision is shown in some of the bizarre observations such as the concern over prejudice to the Defendants, despite the unclean hands/inequitable conduct doctrine in patent cases which deprives the wrongdoers of all rights.
Then there is the comment that we should have somehow filed before the Judgment was entered, even though the sole purpose of this filing was to seek Rule 60 post-judgment relief, which did not ripen until the passage of 90 days from Amarin's non-response to eight's Demand Letter. Until that point--when it was unequivocally clear that Amarin was not pursuing Rule 60--we could not have overcome the "adequate representation" prong of Rule 24.
The time to serve the Demand Letter did not ripen until the en banc was denied. Heck Judge Du did not even regain jurisdiction to entertain the Rule 60 until after the Federal Circuit mandate on 9/2/20.
Moreover, much hullabaloo is made out of the filing not occurring until one-year after the Judgment. But one year is the statutory filing deadline to file Rule 60, thereby rendering our filing per se timely.
Judge Du's erroneous decision an exemplar as to why appellate courts exist. We will be soon filing, and vigorously pursuing our appeal with the Federal Circuit. If we get a good Panel that is faithful to the law, and genuinely wants to get this right, we will prevail. If we get a Panel that is something else, we could very well get Rule 36'd like Amarin. No matter what, we are right. Not because I say so, but because facts, law, evidence, truth, science, math, statistics, morality, and justice say so.
We now return you to your regularly scheduled iHub programming.
