Tinker,
The remand for trial was on a very limited issue - whether Aventis could offer some acceptable excuse for the presentation that mislead the patent office. I would not describe this as shifting the burden. It was the court giving Aventis a chance to explain why their presentation which mislead the PO should not be culpable.
Interestingly, the Federal Circuit sent the case back while in effect affirming that the decision they reversed had established all the elements of the cause of action. Odd right. And the basis was that Aventis should be allowed a trial (contrasted with summary judgment standards) on the very limited issue of whether they could establish an excuse for their illegal behavior.
They failed in the trial courts view.
The judge was brilliant - worked very hard on the case - wrote a fine opinion. It is not a decision that should be overturned, IMO.
ij
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