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I know you are not trying to create confusion, but at this stage of the game, IMO, we need to start separating the wheat from the chaff as best we can --- making open-ended or vague remarks about "possible" negatives in the litigation, without some form of support, tends to take us off that path, and rehashing old topics is simply a waste of time. You and I are absolutely in agreement that the Higgins debacle should never be forgotten in concept, but at the same time, that situation was marked by overconfidence in an issue that was actually before the court for a decision, as opposed to a theoretical problem that may or may not have existed, or that was no longer relevant to the case.
As I have said many times and you echoed in your post this morning, there are no certainties in litigation, and it is therefore always within the realm of infinite possibility that the defendants could bring something out of left field that we don't know about or don't have enough knowledge to understand is important. Until the case has been fully concluded, however, that will continue to be so, and as a result, we need to concentrate on what is likely and what is not --- further discussion of those things in the latter category needs to be left behind unless the Court, or litigants themselves, somehow actively raise such issues again.
With the above in mind, I am going to post more about the issue you raised, so that we can try to put it to rest for the near term. As always, I am not a patent lawyer, although I have done some reading on these subjects --- I continue to welcome the assistance of any patent attorneys who might be out there lurking, or anyone else who considers themselves truly knowledgeable in this field.
When you speak of whether Fish was the "sole inventor" with regard to these patents, that issue, at least to me, no longer exists in the context of the present litigation. Regardless of any documents that may have previoulsy been generated on this subject by either Fish or Moore, the issue is simply no longer relevant. IMO, here's why.
First, the patents themselves show on their face that Fish and Moore were co-inventors (this is one of the problems we had in the prior litigation). Second, to my recollection, there has never been any assertion that soneone other than Fish or Moore was an inventor with reference to these patents. Third, the Master Agreement mutually declares both Fish and Moore to be "at least a co-inventor" with respect to each other. Fourth, there is no dispute that PTSC obtained its rights from Fish and that TPL obtained its rights from Moore. And finally, fifth, the litigation as presently constructed includes both TPL and Patriot as plaintiffs, so that no one can complain that only half the dispute is sought to be resolved --- as a further result, "ownership" in addition to "inventorship" (at least, "sole" inventorship), is not at issue.
Nevertheless, the question of inventorship, based on what I understand, may include the issues of "obviousness" and "prior art". To state it as simply as I can, if something was "obvious", it is nothing new and cannot thereafter be "invented". Similary, if something previously existed as "prior art", it is likewise nothing new because it has already been invented. In either case, the newcomer has not "invented" anything in a legal sense, and his patent thus cannot be upheld.
I hope this is of some use to you and to others who may read it. Again, corrections are more than welcome, but assuming what I have said is accurate, I would respectfully suggest that we should move on to discussing other facets of the litigation that are likely more important at this juncture.
Everyone have a great Sunday afternoon.
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