I wouldn't agree with the proposition that "appeals are rarely successful." Judges make wrong decisions all of the time and they get reversed fairly frequently.
The problem with the appeal here is Cozen O'Connor. Sort of unbelievable that HCMC would consider keeping them. The loss below was caused by none other than Cozen O'Connor's stupidity in attaching evidence that, when credited, disproves HCMC's case.
That being said, HCMC now has to decide whether they want to revive a case accusing a product that is no longer sold in the United States of infringement of a United States Patent. Honestly, it makes no sense unless PM resumes sales.
The decision is not with prejudice. There has been no finding that the patent is not infringed. The case can be refiled. But why would HCMC do that when PM is not even selling the product here.
Now, HCMC has to potentially defend an IPR all for nothing. Now HCMC might take an appeal just to bring a case back against a product that is not even sold in the US and therefore creates very little in damages and recovery. Thanks Cozen O'Connor. Yes, HCMC, see what Cozen O'Connor advises. It has worked out so great thus far.
The most laughable part of Judge Batten's decision to dump the case is where he justifies his conclusion to dump the case based on the FDA documents with the following statement "the court cannot ignore what is in front of it", referring to Exhibit J. But nowhere does the court address the expert evidence of combustion. In other words, the court did exactly what the court said it could not do, i.e., "ignore what is in front of it." He ignored the expert evidence. So he can't "unsee" the FDA docs but he can totally ignore the expert evidence. It makes no sense. Batten elevated to primary significance a wholly conclusory statement in an FDA document while ingoring actual differential scanning calorimetry data provided by a PHD/Chemist that contradicted the conclusory statement that he cited as the basis for the dismissal. That created an issue of fact that should not be resolved on a Motion to Dismiss. Bottom line, Batten just cherry picked what he wanted to cherry pick and then decided based on that. That's your appeal. But does it matter? None of this matters at the moment. PM is not selling this product in the US. Very little damages at the moment. Very little can be recovered at the moment. That is the larger more strategic problem.
