Thanks Zipjet for the information.
The journalist sources I reviewed, including one from a patent law journal who wrote a brief summary, described the case as a burden shifting case, such as in an employment discrimination case, where you establish your prima facie case, then burden shifts to show reason why said acts were justified or legitimate.
If Aventis has already had their chance to factually present their reason for these actions, following the remand, then that sounds like a rather desperate appeal on their part. Just concerned because an appellate court could have otherwise easily overturned it if the proper standard was not used. What the patent journal article opinion was, was that the summary judgment standard was not correct and that it was likely to be overturned. But that is obviously not the issue here. If they have had a full trial, with the prima facie case established sufficiently for a summary judgment ruling, and then given a chance to rebut or explain, then that appears more of a factual issue and not one likely to be overturned.
Tinker
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