Your “malpractice finger” pointing at everyone—management, Covington and Fish—is working overtime so far, I suggest.
In a perfect world, each of above should have recognized the issue presented by the different, RWE relied on by the Examiner in allowing one or more of the patents in suit to issue with its attendant presumption of validity vis a vis the truncated, cropped, misleading evidence presented in appellees’ Findings of Fact given to the District Court Judge to support arguments of invalidity. That issue would have been item 1 in Amarin’s brief in the present appeal had it not been overlooked, not recognized to even exist, prior to filing of either the main brief or reply brief.
OAs would have had a very different tone also; appellees would not have escaped the questions of “WHO did this?” and “WHY was that shortened form of evidence presented?” after S delivered the WHO, WHAT, WHEN and WHERE aspects of the story. Both sides would have faced “HOW did the issue arise without being corrected to make it disappear.”
The issue now known to exist is still timely to present, IMO. Both sides can present their respective views.
No Court wants a party to lose because the wrong and misleading evidence, not corrected, was presented to the Court below, particularly in a manner that appears(at first blush) to be dishonest and inequitable in the manner and form of presentation.
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