I am glad you are on our side, Bouf. I think you are correct that the points you raise are among the opposition arguments confronting us as we proceed. As with LTRO, to the extent you may have strategies to rebut those points, your input is most welcome, whether you wish to publicly post on the Board, or email me privately.
Regarding the partial subjective nature of the obviousness determination, we are laser focused on what Judge Du relied upon in reaching her prima facie obviousness conclusion, which was Mori and Kurabayashi. Through Curfman, Bhatt, Jarvis, HK, we establish that Mori and Kurabayashi cannot be objectively relied upon to clearly and convincingly establish prima facie obviousness.
Because Mori and Kurabayashi cannot be OBJECTIVELY relied upon, it logically follows that Mori and Kurabayashi cannot be SUBJECTIVELY relied upon to establish prima facie obviousness. Judge Du’s misguided reliance on Mori and Kurabayashi, constitutes a Mistake of fact/law by the Judge, necessitating vacation of the Judgment pursuant to Rule 60(b)(1).
Regarding the “these arguments could have and should have been raised at trial defense”, it must be remembered that we are seeking vacation of the Judgment on grounds of judicial Mistake. That Mistake did not accrue until the Judgment was entered, so our Rule 60(b)(1) grounds could not have been raised any earlier than now. This is especially true considering that, as chronicled in the Rule 24 Brief, Amarin appealed within 48 hours, which deprived the District Court of jurisdiction to even entertain a Rule 60 motion.
Indeed, the Curfman/Bhatt article did not come out until the summer, long after the Judgment, and while the appeal was well underway. Correct me if I am wrong, but when the Board was clamoring for Singer to add it to the record, it was you as an experienced appellate litigator who explained that not only was it impractical under the Appellate Rules, but any such effort may have been sanctionable. We reached the same conclusion when preparing the Amicus Brief. No such concerns plague the Rule 60 application, which is tailor made for the introduction the article.
Furthermore there is ample authority dating back to Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944) and its progeny, allowing these types of challenges to proceed even if the challenger did not exercise diligence. We open our Rule 60 Brief stating that the “central function of a trial is to discover the truth.” Portuondo v. Agard, 529 U.S. 61, 73, 120 S.Ct. 1119, 1127, 146 L.Ed.2d 47 (2000). The truth means something, and the courts at the highest levels recognize as much. Plus we as Intervenors, are independent of Amarin, with our own distinct Rule 24 grounds justifying intervention, so I would argue that we should not be penalized for Amarin’s strategic decision-making.
Thus while some of these defenses may seem problematic on the surface, they are unavailing when properly dissected.
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