do you agree Amarin's patents are presumed to be valid going into Du's court at the start of the trial?
Yes
If yes, should it be the defendants' burden to prove HTG is the same as VHTG since all their prior arts do not include VHTG patients?
Yes, but the burden is preponderance of the evidence, not clear and convincing evidence. The clear and convincing standard applies to the overall conclusion of obviousness, not to each fact in dispute.
Do you think the defendants has accomplished that in Du's court?
Based on what I’ve read on this board, no. But there is evidence in the record (e.g., expert testimony) upon which Judge Du could have relied in coming to the opposite conclusion. She was there; she is entitled to credit one expert over another – that’s her job.
Judge Du’s decision actually contains some things highly favorable to Amarin. She found not just one, but two, secondary considerations of non-obviousness to be present. Those are factual findings that are not likely to be disturbed by the appeals court. She teed up this case so that the appeals court could easily say something like:
“We don’t need to get into the complicated question of whether the prior art creates a prima facie case of obviousness, based as that question is on hotly disputed scientific testimony. Even assuming that the prior art did create such a prima facie case, the presence of two secondary considerations of non-obviousness leads us to conclude that the invention was non-obvious.”
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