Captain,
The options for the CAFC are either to affirm the District Court, or reverse the District Court and remand the case back to the District Court, where Hikma would be directed to file an Answer to Amarin's Complaint, and then the case would proceed to discovery, possible summary judgment, possible settlement talks, possible trial, all the stages of a normal case. Amarin does not have a cross-motion for summary judgment, so the CAFC will not make any reversal ruling other than remanding the case back to the District Court for the case to proceed as outlined above.
Amarin has couple of structural advantages in this Appeal that normal Appellants do not have, and these transcend the underlying merits:
1) The Magistrate Judge ruled in their favor, so instead of having just one lower court Opinion, we actually have a difference of opinion between two judges, giving Amarin the opportunity to parrot the Magistrate Judge and say that she got it right.
2) Motions to Dismiss without the benefit of discovery are generally disfavored and are usually not granted. To prevail, the Court has to conclude that that under no set of facts, does Amarin have a meritorious case against Hikma, and Hikma is entitled to prevail as a matter of law. That is essentially what Judge Andrews concluded.
But there are many cases where the Motion to Dismiss is denied, the parties conduct discovery, and then then case loses on summary judgment or at trial. Heck even in Judge Du's court, she did not grant summary judgment when she had the opportunity to do so. She ruled against Amarin after a full trial.
It is not a heavy bar for Amarin to meet in order for the CAFC to reverse and remand at this stage of the proceeding. Unless of course, Judges Dyk and Reyna preside for a third time, in which case, Rule 36 affirmance will inevitably be forthcoming within 24-48 hours after oral argument.
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