Replies to post #282503 on Amarin Corp Plc (AMRN)

[concapk]

biopa

Again MARKMAN'S doesn't mention all the factual errors of Judge Du's ruling... such as MORI'S NS error, KURBASHI cropped table, or USPTO EXAMINER'S not reviewing m

[concapk]

biopa

Again MARKMAN'S doesn't mention all the factual errors of Judge Du's ruling... such as MORI'S NS error, KURBASHI cropped table, or USPTO EXAMINER'S not reviewing Mori/Kurabashi , etc. which affects PRIMA FACI portion of the case... he seems to discuss all issues with a slight bias of AMARIN winning.... This was quite obvious with his long discussion about Written Description in his post today... his first report was very neutral posting arguments for both sides which was interesting... not so much anymore...

[sts66]

That occurred to me - it allows them to skip the LDC-L prior art stuff entirely (see below) - do they look for an easy way out or not? BTW, Markman blog contains the answer to a question I had that went unanswered - yes, the judges get to ask questions during oral arguments, and we will be having them, case won't be decided solely on the briefs. I'm mildly pleased that for once Markman appears to take AMRN's side here on whether they can win the appeal or not - he at least provides several paths for the CAFC to do it, and really keyed in on the weaknesses in the generic's brief.

When we first read Judge Du’s Bench Order, we were surprised that Judge Du “weighed” the secondary considerations against one another given that doing so is inconsistent with the role that secondary considerations typically play within the obviousness analysis. We also noted that Judge Du failed to cite to any caselaw supporting this step. The question then was: on appeal, will the generics discover any legal authority to justify “weighing” secondary considerations against one another?

The answer is, apparently not. The generics’ brief does not cite to any caselaw or other authority to firmly justify Judge Du’s “weighing” of the secondary considerations against each other.

Accordingly, this is likely one of the weakest parts of Judge Du’s Bench Order, and at this point, most likely the strongest chance Amarin has for reversal. It is also likely an issue that the Judges will pick at during oral argument given what appears to be a rather straightforward error of law.

This argument also presents a clear path to reversal that does not require the Court to delve into the scientifically thorny question of “two patient populations” versus the number 500. The pathway is this: by weighing the secondary considerations against one another, Judge Du erroneously discounted the evidence of secondary considerations found in favor of non-obviousness (namely, commercial success and long-felt need.) If those secondary considerations had not been discounted, then they would have weighed more heavily in favor of non-obviousness. And that alone may justify the finding that the generics failed to satisfy their clear-and-convincing evidence burden. It will be very interesting to see if the Judges pursue this line of questioning during the oral argument.