alm,
Thank you for the continued clarification of your thesis. That, and having slept on it, has provided further clarity.
I do not think it is particularly germane to our Appeal whether POSA actually considered Kura, or whether whether POSA should have considered Kura but did not do so. What is germane, is that Judge Du not only thought POSA should have considered POSA, but she considered Kura so pivotal, that she largely centers her wrongfully concluded Judgment upon it.
Unfortunately for everyone involved, she reached the incorrect conclusion that Kura supports prima facie obviousness, when in fact, Kura actually supports non-obviousness.
She reached the incorrect conclusion because she clearly mistakenly relied upon the cropped table contained within Defendants' Post-trial Proposed Findings of Fact. We know this because unlike most litigants, we actually have a proverbial 'smoking gun', on not one, but two levels:
1) The three row cropped table is not the five row full table which appears in the actual Kura article, and establishes the direct opposite conclusion than the incorrect conclusion reached by Judge Du.
2) Judge Du, remarkably, and shockingly, copied the cropped table verbatim into her Judgement.
Yet when we bring this to Judge Du's attention, and spell it all out, she has the audacity to dismiss us completely while arbitrarily and outrageously characterizing our allegations as "unsubstantiated claims of fraud."
In doing so, Judge Du abused her discretion, constituting reversible error. Judge Du's indifference and Defendants' mockery notwithstanding, we have clearly and convincingly established fraud, and under the SCOTUS's Hazel-Atlas line of cases, we are entitled to have this wrongfully decided Judgement reversed. And that's before we even get to the Mori "mistake" discussion.
