One thing about Cyclobenzaprine that is encouraging with respect to Amarin’s appeal is the aggressiveness with which the court dismantled the district court’s decision once the panel found it to be built on flawed facts and procedure. Amarin is similarly arguing that the district court was led down an erroneous path by the defendants, compounded by procedural errors, and if Cyclobenzaprine is any guide, Amarin can rest assured that the appellate panel won’t hesitate to blow up the district court’s decision if they find it similarly flawed. Given the facts of Amarin’s case, it’s not hard to argue that the errors here, both in number and import, exceed those of Cyclobenzaprine.
While one might be concerned that panel composition will be determinative here based on the panel’s collective views on prima facie obviousness theory, I would think that regardless of the panel composition, it will be very difficult for any panel to give the district court a pass on the multiple errors that appear to be irrefutable, and which were, in combination, determinative with respect to the obviousness finding (e.g. weighing secondary considerations against each other; Kurabayashi “not considered”; misreading of Kurabayashi results; “unaware of Mori”, etc.).
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