Replies to post #331819 on Amarin Corp Plc (AMRN)

[lettruthringout]

We are in agreement Bouf

What the prior art taught is at least in part a subjective inquiry

And that is why I do not object to pretty much anything being put forth as prior art: Mori, Kurabayashi, Lovaza PDR, or Green Eggs and Ham. What I object to is is stating that they stand for more or less than they do.

- Mori stands for DHA and EPA individually decreasing triglycerides and DHA increasing LDL-C in individuals with mild hyperlipidemia

- Kurabayashi stands for EPA combined with estriol lowering Apo-B over time in hyperlipidemic, menopausal women.

- Lovaza PDR - stands for a specific combination of DHA and EPA reduces triglycerides and potentially increases LDL-C

- Green Eggs and Ham stands for sometimes people have irrational reasons for their likes and dislikes.

You can combine those 4 pieces of prior art in any fashion and they do not (and should not) make it obvious that high purity EPA will lower triglycerides without raising LDL-C.

To the extent that this becomes an esoteric discussion with the court on statistical principles, I think it does not help the case. Nor do I think assigning blame serves much purpose. The Court's judgment indicates that it imbued both Mori and Kurabayashi with more import than was warranted in its prima facie obviousness determination and in considering secondary factors. That is mistake. Simpler is better.

[HinduKush]

Bouf
I respect your opinion but differ. I am in no way antagonistic to you but seek only to differ with your opinion as stated and perhaps misunderstood at least by me.

What the prior art taught is at least in part a subjective inquiry, as is confirmed by the fact that parties hire experts in the field to opine on what was taught by the prior art. If it was not in part a matter of opinion, there would be no reason for experts to opine. Expert testimony is only allowed if it is helpful to the trier of fact in deciding factual questions outside the ken of an ordinary bloke.

My opinion:
What the prior art teaches is as you say a matter for subjective inquiry and subject to every varying view expressed by "experts" in the field. However, what is not acceptable legally is the admission of every piece of scientifically unsubstantiated whim and fancy or that which is represented in a scientifically incorrect manner.
Hence Daubert'e gatekeeping principle that was established for specifically this purpose. . These methods are also verifiable and endorsed by the judicial standards published in the “Reference Manual on Scientific Evidence” published by the Federal Judicial Center whose oversight committee included Judges Newman, O’Malley, Kessler, and Rakoff. Justice Stephen Breyer writing on behalf of the Federal Judicial Center makes it crystal clear: “The Supreme Court recently made clear that the law imposes on trial judges the duty, with respect to scientific evidence, to become evidentiary gatekeepers…. this requirement extends beyond scientific testimony to all forms of expert testimony. The purpose of Daubert‘s gatekeeping requirement is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”
We may add that in this case the defendant’s expert witness Dr Jay Heinecke, neither employed intellectual rigor nor intellectual honesty nor met the standards of medical experts or POSA’s in the field. The district court is therefore entitled to re-ask the question: Was the accepted proposed findings of fact and their scientific basis erroneously misrepresented/manipulated in analysis and conclusion, by the defendants’ expert witness Dr Jay Heinecke?
To wit, the court is also entitled, therefore, to demand that science is done according to peer review standards, which means that statistics are not pedantic facts as LTRO portrays them but essential to the gatekeeping process that Judge Du swore to uphold.

"Prima facie evidence is evidence good and sufficient on its face and is sufficient to establish a given fact. Prima facie evidence, however, is not conclusive but may be rebutted or corrected and will be overthrown if such rebutting evidence is sufficient."
O'Neal v. State, 498 P.2d 1232, 1235 (Wyo. 1972) (“'Prima facie evidence is evidence good and sufficient on its face and is sufficient to establish a given fact.”)

LTRO
Green Eggs and Ham doesn't qualify as prima facie evidence. Not least because it is utterly irrelevant infantile gobbledegook, and written by a closet racist.
I close by reiterating what Marjac has plainly written:
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.”--ipso facto not opine on made up lies.
The truth must out and the examination of the statistics here is as forensically critical as in a murder trial. It is not a form of trivial pedantry and I am interested in obviousness- just done right!
HK