ILT—
I like the point, but I think it is slightly off. This is not just a math issue like a calculation based on a common formula or equation. At issue is a statistically based interpretation of the meaning of a scientific study. The generics offered their interpretation at trial, and the trial judge bought it. Amarin did not offer the counter interpretation that has now been published, and one has to wonder why if it was such a basic statistical point bearing on the meaning of the Mori study.
The argument being made now is that the district court accepted a statistically flawed interpretation of Mori. Amarin has to show it was clear error for the court to adopt its interpretation. The interpretation of Mori in the new paper will get before the CTA somehow, even though it will take some good lawyering. It will become one of several building blocks supporting the conclusion that the Mori study, by itself or combined with the Lovaza patent, does not show obviousness by clear and convincing evidence. This is a matter of undercutting the district court’s reliance on Mori in as many ways as possible. This paper gives Amarin a strong new reason to ask the CTA to reject the DCT’s conclusion on obviousness, but it is not definitive in and of itself, particularly given AMRN’s failure to raise it at trial.
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