From Appeals for the Federal Circuit:

2006-1517

MCKESSON INFORMATION SOLUTIONS, INC.,

Plaintiff-Appellant,

v.

BRIDGE MEDICAL, INC.,

Defendant-Appellee.

 To avoid the inequity resulting from litigation-driven distortion of the complex procedures of patent prosecution, precedent firmly requires that the intent element of inequitable conduct must be established by clear and convincing evidence of deceptive intent -- not of mistake, if there were such, but of culpable intent. See Kingsdown Medical Consultants, Ltd. v. Hollister Inc., 863 F.2d 867, 872 (Fed. Cir. 1988) (en banc) (both materiality and intent to deceive must be proven); Molins PLC v. Textron, Inc., 48 F.3d 1172, 1181 (Fed. Cir. 1995) (proof of "clear and convincing" is necessary to establish intent to mislead or deceive the PTO). In Kingsdown, we observed that, "To be guilty of inequitable conduct, one must have intended to act inequitably." 863 F.2d at 872 (quotingFMC Corp. v. Manitowoc Co., Inc., 835 F.2d 1411, 1415 (Fed. Cir. 1987)). That standardwas not met here. This court returns to the "plague" of encouraging unwarranted charges of inequitable conduct, spawning the opportunistic litigation that here succeeded despite consistently contrary precedent. (Bold added).

To my non legally-educated self, this defence to the '148 is a very shaky peg to hang a defence on - it seems that the burden of proof will need to close to criminal (i.e beyond a reasonable doubt). I imagine that this will be extremely difficult to establish.

The '336 defence seems like a total Hail Mary as well. If Motion to strike Higgins is granted, is there anyone or anything available to corroborate this story, even if it is true? Assuming there is, isn't this all covered by attorney-client privilege in any case?

Shaw and Higgins worked  together to correctly file a patent application on behalf of Patriot Scientific, subsequently granted by the USPTO, for an invention that works as described and that other companies currently use and licence - whether a PTSC employee (Shaw) believes the invention to be good or bad should be completely irrelevant.

How many employees think their bosses are half-wits, and how often is their opinion considered in the strategic moves of the company?

My own thoughts are that this must be some kind of prelude to a settlement. Lawyers of this standing can't seriously be proposing to go to a jury with this nonsense.

Good luck to everyone