United States Court of Appeals
for the Federal Circuit
__________________________
GOLDEN HOUR DATA SYSTEMS, INC.,
Plaintiff-Appellant,
v.
EMSCHARTS, INC.,
Defendant-Cross Appellant,
AND
SOFTTECH, LLC,
Defendant-Appellee.
__________________________
2009-1306, -1396
__________________________
Appeals from the United States District Court for the
Eastern District of Texas in case no. 2:06-CV-381, Judge
T. John Ward.
___________________________
Decided: August 9, 2010
___________________________
CARTER G. PHILLIPS, Sidley Austin LLP, of Washing-
ton, DC, argued for plaintiff-appellant. With him on the
brief were ERIC A. SHUMSKY and RACHEL H. TOWNSEND;
and TACY F. FLINT, of Chicago, Illinois. Of counsel was
PANKAJ VENUGOPAL, of Washington, DC.
GOLDEN HOUR DATA v. EMSCHARTS 2
ERIC H. WEISBLATT, Wiley Rein LLP, of Washington,
DC, argued for defendant-cross appellant and defendant-
appellee. With him on the brief was SUSAN M. DADIO,
Buchanan Ingersoll & Rooney PC, of Alexandria, Virginia.
Of counsel was MARTIN A. BRUEHS. ERIC H. FINDLAY and
ROGER BRIAN CRAFT, Findlay Craft LLP, of Tyler, Texas,
for defendant-appellee.
__________________________
Before NEWMAN, FRIEDMAN, and DYK, Circuit Judges.
Opinion for the court filed by Circuit Judge DYK.
Dissenting opinion filed by Circuit Judge NEWMAN.
DYK, Circuit Judge.
Golden Hour Data Systems, Inc. (“Golden Hour”) ap-
peals from a judgment of the United States District Court
for the Eastern District of Texas. After trial, a jury
rendered a verdict of infringement of various claims of
United States Patent No. 6,117,073 (“the ’073 patent”) in
favor of Golden Hour against defendants emsCharts, Inc.
(“emsCharts”) and Softtech, LLC (“Softtech”). However,
the district court subsequently granted Judgment as a
Matter of Law (“JMOL”) of no joint infringement of claims
1, 6-8, 10, and 12-22 of the ’073 patent and held the ’073
patent unenforceable due to inequitable conduct. Golden
Hour Data Systems, Inc. v. emsCharts, Inc., et al., No.
2:06-CV-381 (E.D. Tex. Apr. 3, 2009) (“Infringement
Order”); Golden Hour Data Systems, Inc. v. emsCharts,
Inc., et al., No. 2:06 CV 381 (E.D. Tex. Mar. 23, 2009)
(“Inequitable Conduct Order”). We affirm the district
court’s finding of no joint infringement. However, we
conclude that the district court must make additional fact
findings with respect to the intent prong of inequitable
conduct. We therefore vacate the district court’s inequi-
3 GOLDEN HOUR DATA v. EMSCHARTS
table conduct determination and remand for further
proceedings consistent with this opinion.
BACKGROUND
I
Golden Hour’s ’073 patent, entitled “Integrated Emer-
gency Medical Transportation Database System” is di-
rected to computerized systems and methods for
information management services in connection with
emergency medical transport, which is often performed by
helicopter. Providers of such emergency medical trans-
portation must collect and track large amounts of data for
the purposes of dispatching transport, treating patients
(clinical services), and also for billing. The systems of the
’073 patent provide for the integration of dispatch, clinical
services, and billing data. The ’073 patent discloses a
dispatch module, a clinical module, an administration
module, and a billing module. By integrating recordkeep-
ing, these systems seek to avoid the inefficiency, inaccu-
racy and potential adverse clinical results that come with
redundancy in recordkeeping.
The final sentence of the “Background of the Inven-
tion” section of the ’073 patent summarizes the basic
concept of the invention: “what is needed is a comprehen-
sive system that includes modules for dispatching emer-
gency medical teams, tracking their movement to and
from the accident scene, managing a clinical diagnosis
and treatment and accurately billing the patient for the
services rendered.” ’073 patent col.1 l.66-col.2 l.3. Claims
1, 6-8, 10, and 12-14 are apparatus claims and claims 15-
22 are method claims. Claims 1, 10, and 15 are independ-
ent claims. Claim 1 requires integrating dispatch and
billing data. It provides:
GOLDEN HOUR DATA v. EMSCHARTS 4
1. A computerized integrated data manage-
ment system for tracking a patient incident, com-
prising:
a first module capable of dispatching an
emergency transport crew specific to a patient in-
cident requiring emergency medical care by the
emergency transport crew, wherein transporta-
tion tracking information relating to the dispatch
is recorded; and
a second module capable of receiving informa-
tion from the first module and billing the patient
appropriately for costs indicative of the patient in-
cident, including transportation costs.
Id. col.20 l.61-col.21 l.4 (emphasis added). Claim 15
requires integrating dispatch and clinical services data.
It provides:
15. A computerized method of generating a
patient encounter record, comprising the steps of:
collecting flight information relating to an
emergency transport crew dispatch;
collecting patient information from a clinical
encounter associated with a patient incident re-
quiring emergency medical care by the emergency
transport crew; and
integrating the patient information with the
flight information to produce an encounter record
indicative of the patient’s clinical encounter.
Id. col.21 l.54-col.22 l.6.
In February of 1997, Dr. Kevin Hutton (“Hutton”) and
Dr. Scott Jones (“Jones”) formed Golden Hour in order to
commercialize the invention ultimately covered by the
’073 patent. Hutton acted as Golden Hour’s chief execu-
tive officer. Hutton and Jones engaged the Knobbe Mar-
tens Olson & Bear LLP law firm (“Knobbe Martens”) to
5 GOLDEN HOUR DATA v. EMSCHARTS
assist in the prosecution of the patent application. The
application leading to the ’073 patent was filed on March
2, 1998. Hutton and Jones were the named inventors.
Michael Fuller (“Fuller”), a senior patent agent, and John
M. Carson (“Carson”), a partner who supervised his work,
prepared, filed, and prosecuted the patent application
with the knowledge and assistance of Hutton.
At the time of the filing of the application, Hutton be-
lieved that Air Medical Software (“the AeroMed system”)
was the system most similar to the subject matter of the
application. The “Description of the Related Technology”
section of the ’073 patent specification discusses the
AeroMed system. The specification provides:
Current documentation procedures in the air
medical transport industry are based on an ineffi-
cient paper and pencil technology. . . .
....
The fragmentation throughout the medical
transport environment is also evident in the myr-
iad of entities throughout the country practicing
different standards of care and documentation. . .
. This is especially evident when certain aspects
of the system (such as computerized clinical labo-
ratory result displays) have been upgraded with a
uniquely tailored computerized system, while the
remaining functions are still performed in an ar-
chaic manner. While the upgraded system may be
effective for one singular aspect, such as dispatch-
ing, lab reporting, or chart dictating, the remain-
der of the system does not improve its
effectiveness due to the other archaic components.
Although others have attempted to remedy
this conflict, no fully integrated medical systems
have been developed. For example, the Air Medical
GOLDEN HOUR DATA v. EMSCHARTS 6
Software (Innovative Engineering of Lebanon,
N.H.) provides computer software for dispatching
emergency crews to accident scenes and managing
flight information. However, it does not provide
comprehensive integration of the flight informa-
tion with a clinical diagnosis, billing system and
administration system.
’073 patent col.1 ll.11-57 (emphasis added).
On August, 4, 1998, during prosecution of the ’073
patent, Fuller submitted an Information Disclosure
Statement (“IDS”) further describing the AeroMed sys-
tem. In the IDS, Fuller stated: “Applicants are aware of
AeroMed Software, computer software for Air Medical
Dispatch, Flight Program Management, Medical Chart-
ing, Continuing Education Tracking, Transfer Center,
Physician’s Referral Lines, and Custom Applications.
AeroMed Software is a product of Innovative Engineering
of Lebanon, New Hampshire.” J.A. 4944-45.
The patent application included 27 claims. During
prosecution, the Patent and Trademark Office (“PTO”)
issued a first office action on February 18, 1999. In this
office action, the examiner rejected claims 1-5, 8-14, and
23-27 as anticipated by U.S. Patent No. 5,619,991
(“Sloane”). Certain of these claims were directed to the
integration of billing information with dispatch data alone
and the integration of both billing and dispatch data with
clinical data. The examiner’s anticipation rejection noted
that the system of Sloane “is configured to generate
billing information.” J.A. 4940. The examiner allowed
original claims 15-22, which did not relate to the integra-
tion of billing information, but which related to the inte-
gration of dispatch and clinical data. The examiner noted
that though “[t]he prior art teaches systems and methods
7 GOLDEN HOUR DATA v. EMSCHARTS
of computerized integrated data management,” it “does
not teach or suggest a computerized method that includes
collecting and integrating patient information with flight
information to produce an encounter record.” J.A. 4940-
41. In response to the rejection, Golden Hour amended
claims 1, 7, 10, 23, 26, and 27 in respects not relevant
here. Golden Hour also traversed the rejections based on
Sloane. Golden Hour overcame the rejections based on
Sloane by arguing, in part, that Sloane’s disclosure of
billing information
is based solely on the charge of the encounter be-
tween Sloane’s system and the patient. Such bill-
ing would be based solely on the amount of time
spent counseling the patient as to what the ap-
propriate treatment would be. It does not con-
sider billing for any actual treatment such as
medications, interventions, or procedures. . . .
[T]his billing is for virtual services rendered. Ap-
plicant’s system tracks actual services rendered
and bills for such.
J.A. 4951-52. In light of Golden Hour’s response, all
claims were allowed and the ’073 patent issued on Sep-
tember 12, 2000.
II
The accused infringers are emsCharts and Softtech.
emsCharts produces a web-based medical charting pro-
gram called emsCharts. The emsCharts program charts
patient information and provides integrated billing.
Softtech produces computer-aided flight dispatch software
called Flight Vector, which coordinates flight information,
such as patient pickup and delivery, and flight tracking.
The two companies formed a strategic partnership, en-
GOLDEN HOUR DATA v. EMSCHARTS 8
abled their two programs to work together, and collabo-
rated to sell the two programs as a unit.
In September of 2006, Golden Hour sued emsCharts
and Softtech for infringement of the ’073 patent. Golden
Hour accused emsCharts of directly infringing claims 10
and 12-14 of the ’073 patent by making, using, offering to
sell, and selling its emsCharts.com system. Golden Hour
also accused emsCharts and Softtech together of jointly
infringing claims 1, 6-8, and 15-22. Most of the asserted
claims involve the integration of billing data. The jury
returned a verdict for Golden Hour. It found that an
AeroMed brochure describing the system did not antici-
pate the ’073 patent. It found that emsCharts had di-
rectly infringed claims 10 and 12-14, that emsCharts and
Softtech had jointly infringed claims 1, 6-8, and 15-22,
and that emsCharts had induced infringement of all of
these claims. It then determined that emsCharts’ in-
fringement was willful and awarded $3,500,000 to Golden
Hour.
After the jury verdict in favor of Golden Hour, the dis-
trict court held a bench trial to consider the issue of
inequitable conduct. The brochure that the jury had
found not to anticipate was a central feature of the ineq-
uitable conduct trial. The brochure was undated and
described the AeroMed system (“the AeroMed brochure”).
Hutton testified that he did not have the brochure at the
time that the application was filed on March 2, 1998, but
that he received it about three weeks after at the
AeroMedical Services Midyear Conference. Hutton gave
prosecution counsel the AeroMed brochure sometime
before August 4, 1998.
The inside of the AeroMed brochure described the
AeroMed system as an integrated system with a dispatch
9 GOLDEN HOUR DATA v. EMSCHARTS
module combined with medical charting and billing. It
stated that “[t]he AMS Dispatch Module can be used with
the Flight Management Module . . . . It is an integrated
real-time flight dispatching program . . . .” J.A. 10848. It
advertised “[a] fast, easy way to create flight plans, cost
quotes, track aircraft. No-nonsense medical charting.
Billing.” Id. at 10847. It noted that “[t]he Flight Man-
agement Module is a companion to the Dispatch Module.
All information entered by the Dispatch Module is com-
bined into Flight Management so that duplicate data
entry is eliminated.” Id. at 10848. It assured that, with
the Flight Management Module, “[b]illing becomes a
breeze with the user definable reports.” Id. The parties
do not dispute that the brochure would have been antici-
patory of some of the claims of the ’073 patent if it had
been prior art, that is, if it had existed before the date of
invention or more than a year before filing. See 35 U.S.C.
§ 102.
Based on the brochure, prosecution counsel prepared
the IDS and filed it on August 4, 1998. The description of
the AeroMed system in the IDS is identical (with the
exception of “Centers” being plural in the brochure) with
what is set forth on the front cover of the brochure. The
IDS did not disclose the integrated billing system de-
scribed in the brochure. At no time during prosecution of
the application was the brochure or the billing system
information provided to the examiner.
The defendants argued that prosecution counsel
committed inequitable conduct by intentionally failing to
disclose the brochure or the information contained in the
brochure because it contradicted the statement in the
specification that AeroMed “does not provide comprehen-
sive integration of the flight information with a clinical
diagnosis, billing system and administration system.” ’073
GOLDEN HOUR DATA v. EMSCHARTS 10
patent col.1 ll.54-57. Defendants also argued that the act
of selectively disclosing material recited on the front of
the brochure but not disclosing the recitation of “inte-
grated” “billing” on the inside of the brochure also consti-
tuted inequitable conduct.
With respect to materiality, the district court found
that the AeroMed brochure disclosed “integration” and
“billing.” Inequitable Conduct Order, slip op. at 13. The
district court then observed that “the inventive feature of
the ’073 patent was billing integration” and that the
brochure’s disclosure of integration between the Dispatch
Module and the Flight Management module (which
includes billing) “clearly contradicts what both Dr. Hutton
and prosecution counsel had represented to the PTO
[about the AeroMed system] in the application.” Id. at 8,
11. The court found that the information inside of the
brochure “was inconsistent [with] the disclosure in the
IDS, and inconsistent with how [Hutton and prosecution
counsel] had described the AeroMed system in the origi-
nal application.” Id. at 10. Therefore because “Fuller
selected that part of the brochure to disclose that did not
threaten patentability” and “excluded . . . the entire
teaching that would have been a serious obstacle to
patentability,” the district court found that “[t]here can be
no question” that the withheld information is “highly
material.” Id. at 15.
With respect to intent, the court found that Golden
Hour’s nondisclosure of the brochure and selective disclo-
sure of the contents of the brochure evidenced intent to
deceive the PTO. The court concluded that Fuller must
have been aware of the contents of the brochure. Id. at
12-13. The court reiterated that “Golden Hour and its
counsel selected the one part of the AeroMed brochure to
disclose [that] was consistent with how it had described
11 GOLDEN HOUR DATA v. EMSCHARTS
AeroMed to the PTO” and found that “[s]uch selectivity is
strong evidence of intent to mislead the patent office
about the relevant prior art system as described by its
competitor.” Id. at 13. The court therefore concluded that
“the single most reasonable inference to be drawn is that
Golden Hour intended to deceive the patent office.” Id. at
14. The court then balanced the high level of materiality
with the evidence of deceptive intent and concluded that
Golden Hour committed inequitable conduct, rendering
the ’073 patent unenforceable.
The court also granted emsCharts’ motion for JMOL
with respect to the jury verdict of joint infringement. The
court found that there was insufficient evidence of “con-
trol” or “direction” by emsCharts or Softtech (or vice
versa) to find joint infringement of any of the claims 1, 6-
8, 10, and 12-22. Golden Hour timely appealed to this
court, and we have jurisdiction over this appeal under 28
U.S.C. § 1295(a)(1).
DISCUSSION
I Inequitable Conduct
On appeal, Golden Hour first argues that the district
court improperly held the ’073 patent unenforceable due
to inequitable conduct. “A patent may be rendered unen-
forceable due to inequitable conduct if an applicant, with
intent to mislead or deceive the examiner, fails to disclose
material information or submits materially false informa-
tion to the PTO during prosecution.” Digital Control, Inc.
v. Charles Mach. Works, 437 F.3d 1309, 1313 (Fed. Cir.
2006). The party seeking to render a patent unenforce-
able due to inequitable conduct must prove both material-
ity and intent by clear and convincing evidence. Id. The
court must then weigh the levels of materiality and intent
GOLDEN HOUR DATA v. EMSCHARTS 12
to determine whether the conduct at issue amounts to
inequitable conduct. Id. We review the district court’s
factual findings as to materiality and deceptive intent for
clear error and the ultimate decision on inequitable
conduct for abuse of discretion. Star Scientific, Inc. v.
R.J. Reynolds Tobacco Co., 537 F.3d 1357, 1365 (Fed. Cir.
2008); Kingsdown Med. Consultants, Ltd. v. Hollister Inc.,
863 F.2d 867, 876 (Fed. Cir. 1988) (en banc in relevant
part).
Golden Hour argues on appeal that the district court
erred with respect to its factual findings concerning both
materiality and intent, and that therefore, the ultimate
determination of inequitable conduct cannot stand.
A Materiality
“[W]e have held that information is material when a
reasonable examiner would consider it important in
deciding whether to allow the application to issue as a
patent.” Star Scientific, 537 F.3d at 1367 (citations
omitted). The PTO Rules also aid in the definition of
materiality. Rule 56 provides that an applicant has a
duty to disclose information that is material to patentabil-
ity and states that
(b) Under this section, information is material to
patentability when it is not cumulative to infor-
mation already of record or being made of record
in the application, and
(1) It establishes, by itself or in combina-
tion with other information, a prima facie
case of unpatentability of a claim; or
(2) It refutes, or is inconsistent with, a po-
sition the applicant takes in:
13 GOLDEN HOUR DATA v. EMSCHARTS
(i) Opposing an argument of un-
patentability relied on by the
[PTO], or
(ii) Asserting an argument of pat-
entability.
37 C.F.R. § 1.56(b). The PTO rules clearly require the
submission of known information that contradicts mate-
rial information already submitted to the PTO. See
Monsanto Co. v. Bayer Bioscience N.V., 514 F.3d 1229,
1239-40 (Fed. Cir. 2008); Pharmacia Corp. v. Par Pharm.,
Inc., 417 F.3d 1369, 1373 (Fed. Cir. 2005). If a misstate-
ment or omission is material under the Rule 56 standard,
it is material for the purposes of inequitable conduct.
Digital Control, 437 F.3d at 1316.
The district court found the brochure and the undis-
closed information contained in the brochure to be mate-
rial because it contradicted the representations about the
AeroMed system in the specification, and that the bro-
chure was also material in view of the partial disclosure
of the brochure’s contents in the IDS. Golden Hour
argues that the PTO Rules and the Manual of Patent
Examining Procedure (“MPEP”) would have precluded an
examiner from considering the undated AeroMed bro-
chure, and therefore it cannot be material. MPEP section
609 instructs examiners not to consider references in-
cluded in an IDS which do not comply with 37 C.F.R. §
1.98. Section 1.98(b)(5) requires that “[e]ach publication .
. . must be identified by publisher, author (if any), title,
relevant pages of the publication, date, and place of
publication.” (emphasis added). Golden Hour therefore
maintains that a reasonable examiner could not have
considered the brochure material to patentability because
the rules would prohibit the examiner from considering
the brochure because it was not known to be prior art. In
GOLDEN HOUR DATA v. EMSCHARTS 14
other words, Golden Hour maintains that a reference is
not material unless the prior art status of the reference is
established on the face of the reference.
The MPEP itself contradicts this reading. The sec-
tions on which Golden Hour relies do not limit an IDS to
the submission of prior art references, and the MPEP
states that “[t]here is no requirement that the informa-
tion [identified in an IDS] must be prior art references in
order to be considered by the examiner.” MPEP § 609
(2008). Further, our prior cases make clear that informa-
tion may be material even if it does not qualify as prior
art. As we held in Duro-Last, Inc. v. Custom Seal, Inc.,
321 F.3d 1098, 1107 (Fed. Cir. 2003),
[t]his court has long held that whether a prior ref-
erence is material, i.e., whether there is a sub-
stantial likelihood that a reasonable examiner
would have considered the reference important in
deciding whether to allow the application to issue
as a patent, is not controlled by whether that ref-
erence actually anticipates the claimed invention
or would have rendered it obvious.
See also Digital Control, 437 F.3d at 1318 (“[A] misstate-
ment or omission may be material even if disclosure of
that misstatement or omission would not have rendered
the invention unpatentable.”); Li Second Family Ltd.
P’ship v. Toshiba Corp., 231 F.3d 1373, 1380 (Fed. Cir.
2000). The information in the brochure here was clearly
material.
First, the brochure may well have been prior art.
While the district court made no finding as to the prior
art status of the brochure, we note that there is substan-
tial evidence in the record that the brochure is indeed
15 GOLDEN HOUR DATA v. EMSCHARTS
prior art. Charles Freeman, AeroMed’s software devel-
oper and the brochure’s author, testified that he had the
brochure with him at the 1996 AMTC Conference. 1 If the
brochure had been in existence in 1996, that would make
the brochure prior art; further the system it described
would have been prior art, given the application date of
March 2, 1998. See 35 U.S.C. § 102(b). 2 A reasonable
examiner would likely wish to inquire into the prior art
status of the system disclosed in the brochure in light of
the representations as to the system appearing in the
specification. Indeed Golden Hour itself admits that an
examiner “might have been curious about the brochure
because it related to the same subject matter as the
earlier recitation of prior art.” Pl.-Appellant’s Br. 25.
1 His testimony was as follows:
Q. . . . . So you said this brochure was from 1996?
A. Uh-huh.
Q. And you displayed it—you had it at the AMTC
show in 1996?
A. That is correct.
Q. Are you sure about that?
A. Uh-huh.
Q. Really?
A. Uh-huh.
J.A. 4033.
2 Golden Hour seems to suggest that the brochure
cannot be material because the jury found it not to be
prior art. However, the jury did not find that the bro-
chure was not prior art, only that none of the claims of the
’073 patent was anticipated. The jury could have con-
cluded that the brochure was prior art, but that it did not
anticipate. Therefore there is no jury finding that the
brochure is not prior art.
GOLDEN HOUR DATA v. EMSCHARTS 16
Second, the brochure and the information contained
therein were material because they contradicted other
representations to the PTO, even if the brochure was not
itself prior art. In the specification, applicants described
the AeroMed system in existence as of the time of the
application. See Pl.-Appellant’s Br. 23 (“In the ‘Back-
ground of the Invention’ section of the ’073 application,
which was filed on March 2, 1998, Golden Hour identified
the AeroMed software that existed at that time.”). The
specification of the ’073 patent describes the AeroMed
brochure, stating that “the [AeroMed system] provides
computer software for dispatching emergency crews to
accident scenes and managing flight information. How-
ever, it does not provide comprehensive integration of the
flight information with a clinical diagnosis, billing system
and administration system.” ’073 patent col.1 ll.52-57
(emphases added). The present-tense representation that
the AeroMed system “does not provide comprehensive
integration . . . with . . . billing” continued unchanged
throughout the pendency of the application. In direct
contradiction to that statement, the AeroMed brochure,
received mere weeks after filing, states that with the
Flight Management module, “[b]illing becomes a breeze
with the user definable reports. Patient charges can be
calculated and printed any number of ways to include
transport time and itemizing of medical supplies.” J.A.
10848. 3 By not correcting the statement in the specifica-
tion, applicants continued to maintain its truth in direct
contradiction to what is disclosed in the AeroMed bro-
3 The brochure also states that “[t]he Flight Man-
agement Module is a companion to the Dispatch Module”
and that “[a]ll information entered by the Dispatch Mod-
ule is combined into Flight Management so that duplicate
data entry is eliminated.” J.A. 10848.
17 GOLDEN HOUR DATA v. EMSCHARTS
chure. Given the importance of integrated billing to the
patentability of the invention, information inconsistent
with or contrary to the application’s representation of the
capabilities of AeroMed’s billing system in the specifica-
tion would have been important to a reasonable exam-
iner. 4
Further, after receipt of the brochure, applicants filed
the IDS describing the AeroMed brochure. The IDS was
also worded in the present tense. In the IDS, prosecution
counsel stated that “[a]pplicants are aware of AeroMed
Software” and listed the attributes of the software found
on the front of the brochure, but did not disclose the
integrated billing found on the inside of the brochure.
J.A. 4944-45 (emphasis added). Given the significance of
4 See Larson Mfg. Co. v. Aluminart Prods. Ltd., 559
F.3d 1317, 1338-39 (Fed. Cir. 2009) (finding material a
withheld adverse decision by an examiner in a substan-
tially similar application because it “refuted, or was
inconsistent with, the position that claim limitations of
the [patent in suit] were patentable over the Johnson
patent”); Monsanto, 514 F.3d at 1239 (finding materiality
of the Mariani notes “in light of . . . discrepancies between
the interpretation of the Barnes Abstract Bayer advocated
and the information contained in the Mariani notes”);
Purdue Pharma L.P. v. Endo Pharms. Inc., 438 F.3d 1123,
1132 (Fed. Cir. 2006) (holding that “[i]nformation that
Purdue’s assertion of a four-fold dosage range was based
only on [the inventor’s] insight and not on experimental
results was material because it was inconsistent with
Purdue’s statements suggesting otherwise”); Agfa Corp. v.
Creo Prods. Inc., 451 F.3d 1366, 1377-78 (Fed Cir. 2006)
(affirming a finding of materiality where “undisclosed
prior art . . . was inconsistent with [applicant’s] mislead-
ing statements to the examiner during prosecution”);
Pharmacia Corp., 417 F.3d at 1373 (affirming a finding of
inequitable conduct where a prior article by a declarant
contradicted his declaration to the PTO).
GOLDEN HOUR DATA v. EMSCHARTS 18
integrated billing to patentability, the failure to disclose
the billing characteristics of the AeroMed system in the
IDS was also highly material. The failure to disclose the
integrated billing would lead one to believe that the
AeroMed system did not provide comprehensive integra-
tion with billing. The brochure’s recitation of integrated
billing, which applicants failed to disclose, would un-
doubtedly have been material to a reasonable examiner. 5
For example, the existence of an AeroMed system with
integrated billing would raise the possibility of public use
or on-sale bars even if the brochure itself was not prior
art. 6
5 See Semiconductor Energy Lab. Co. v. Samsung
Elecs. Co., 204 F.3d 1368, 1376-77 (Fed. Cir. 2000) (noting
that an inventor must “provide the PTO with sufficient
information for a reasonable examiner to consider the
[submission] in context, not with a selective and mislead-
ing disclosure” and that “[b]y submitting the entire un-
translated . . . reference to the PTO along with a one-
page, partial translation focusing on less material por-
tions and a concise statement directed to these less mate-
rial portions, [applicant] left the examiner with the
impression that the examiner did not need to conduct any
further translation or investigation. Thus, [applicant]
deliberately deceived the examiner into thinking that the
. . . reference was less relevant than it really was, and
constructively withheld the reference from the PTO”).
6 Moreover, in the one office action issued by the
examiner, the examiner noted that “[t]he prior art teaches
systems and methods of computerized integrated data
management, but does not teach or suggest a computer-
ized method that includes collecting and integrating
patient information with flight information to produce an
encounter record, as set forth in the claims.” J.A. 4940-
41. The examiner then pronounced independent claim 15
allowable. This claim is, and was during prosecution,
directed to a method of integrating dispatch and charting.
The withheld AeroMed brochure discloses integrated
19 GOLDEN HOUR DATA v. EMSCHARTS
We therefore affirm the district court’s finding that
the information in the brochure not produced to the PTO
was highly material.
B Intent
The intent element is a separate component of an in-
equitable conduct determination. Star Scientific, 537
F.3d at 1366. To prove intent, “the involved conduct,
viewed in light of all the evidence, including evidence of
good faith, must indicate sufficient culpability to require a
finding of intent to deceive.” Digital Control, 437 F.3d at
1319 (citations omitted). Intent need not be proven by
direct evidence; it can be inferred from indirect and
circumstantial evidence. Star Scientific, 537 F.3d at 1366
(citing Cargill, Inc. v. Canbra Foods, Ltd., 476 F.3d 1359,
1364 (Fed. Cir. 2007)); Merck & Co. v. Danbury Phar-
macal, Inc., 873 F.2d 1418, 1422 (Fed. Cir. 1989). An
inference of intent “must not only be based on sufficient
evidence and be reasonable in light of that evidence, but it
must also be the single most reasonable inference able to
be drawn from the evidence to meet the clear and convinc-
ing standard.” Star Scientific, 537 F.3d at 1366.
The contention is that Fuller, Hutton, or both, in-
tended to deceive the PTO by failing to fully disclose the
capabilities of the AeroMed system described in the
brochure. The district court appears to have inferred
intent to deceive from the high materiality of the
AeroMed brochure, from the selective disclosure in the
dispatch and charting. The brochure would also have
been material to the examiner’s consideration of claim 15.
See Monsanto, 514 F.3d at 1240 (affirming a finding of
high materiality of withheld information where “[Appli-
cant] was attempting to claim a nearly identical inven-
tion”).
GOLDEN HOUR DATA v. EMSCHARTS 20
IDS, and from the lack of a credible explanation on the
part of Hutton and prosecution counsel for the selective
disclosure. 7
We agree that the district court could find the expla-
nation for not submitting the brochure or its undisclosed
contents not to be credible (if its contents were known).
The explanation was that it was Fuller’s practice not to
submit undated materials. But Fuller testified that he
knew that other practitioners at Knobbe Martins submit-
ted undated brochures to the PTO and that the PTO
considers those brochures. But most importantly, even if
Fuller believed that the PTO’s rules would not have
permitted the examiner to consider the undated brochure,
there is no suggestion that Fuller thought that the infor-
mation in the brochure was off-limits—indeed Fuller
submitted information from the brochure in the IDS. See
Semiconductor Energy, 204 F.3d at 1375, 1376 (holding
that “[i]t was incumbent upon [the inventor] to provide
the PTO with sufficient information for a reasonable
examiner to consider the [submission] in context, not with
a selective and misleading disclosure” and because “[t]he
inventor[] failed to do that” he “cannot post facto hide
behind the MPEP guidelines”). In sum, prosecution
counsel failed to provide any explanation for withholding
7 With respect to both Fuller and Hutton, the dis-
trict court also observed that “although the evidence
emsCharts presents to prove that Dr. Hutton and prose-
cution counsel knew they were making false statements
to the PTO at the time of filing the patent application
[March 2] is persuasive, it does not rise to the level of
clear and convincing evidence needed to find inequitable
conduct.” Inequitable Conduct Order, slip op. at 4.
21 GOLDEN HOUR DATA v. EMSCHARTS
the missing information from the brochure, assuming he
was aware of the brochure’s contents.
The district court also did not err in finding that
“[e]ven the most cursory of reviews would have revealed
the description of AeroMed’s billing and integration—the
only thing described in the center column of the one page
brochure,” i.e., that it was inconsistent with the represen-
tations in the specification. See Inequitable Conduct
Order, slip op. at 13.
The key question then is whether Fuller and/or
Hutton in fact read the brochure. Fuller testified that he
did not remember the circumstances regarding the bro-
chure and the preparation of the IDS. He testified as
follows:
I probably just looked at the front [of the bro-
chure] and said, oh that’s AeroMed Software.
May have been—and I wrote that down.
I don’t recall Your Honor. I really don’t. And
so, but likely, I just looked at the front of the bro-
chure trying to describe the software that was
available and just wrote down those things that
were—that were on the front of the brochure.
J.A. 4673. Fuller never testified definitively that he did
not read the brochure in full. Here, there are two possible
explanations for the failure to advise the PTO about the
integrated billing disclosed in the brochure: (1) that
Fuller and Hutton failed to read the brochure, and (2)
that one or both read it and deliberately withheld the
information. The distinction between these two explana-
tions is important. If one or both read the brochure and
deliberately did not disclose the damaging information on
the inside, their actions would give rise to an inference of
intent to deceive. However, if they did not read the
GOLDEN HOUR DATA v. EMSCHARTS 22
brochure (and did not do so to avoid learning of damaging
information), those actions regarding the failure to dis-
close the information on the inside of the brochure would
at most, amount to gross negligence. Gross negligence is
not inequitable conduct. See Kingsdown, 863 F.3d at 876.
The district court appears to have discredited Fuller’s
testimony that he did not read the brochure because of its
inconsistency with his statement that he did not disclose
the brochure because it was undated, stating that
Fuller claims ignorance of what was in the bro-
chure. Counsel testified he does not recall reading
the description of AeroMed’s billing in the bro-
chure. . . . That testimony is inconsistent. Coun-
sel testified the only explanation for exact replica
of the language from the brochure was that he
only looked at the front of the brochure and not
the inside. If counsel did not submit the brochure
because it was undated, he must have at least done
a cursory review of the brochure to determine there
was no date.
Inequitable Conduct Order, slip op. at 12-13 (citations
omitted). However, Fuller never actually testified that he
did not disclose the AeroMed brochure because it was
undated. 8 Fuller only testified that it was his practice in
8 His relevant testimony was as follows:
Q: Was it your practice at the time
the patent application that became the
’073 patent was filed to submit undated
materials to the PTO?
A: No. There’s no reason to submit
undated materials. They’re not even prior
art; they’re not material. The Examiner
won’t even consider them.
23 GOLDEN HOUR DATA v. EMSCHARTS
1998 not to submit undated materials. A fair reading of
Fuller’s testimony is that he testified that he did not
remember reading the inside of the brochure, but that
even if he had, he would not have submitted it because it
was his practice not to submit undated materials. The
district court indicated that it found aspects of Fuller’s
testimony to be “inconsistent” and unhelpful. Id. at 13,
15. With respect to inventor Hutton, the district court
also indicated that it generally found his testimony to be
incredible. Id. at 12 (“Dr. Hutton can not claim he did not
find the brochure material.”); id. at 8 n.3 (“Dr. Hutton’s
testimony in the jury trial about his understanding of
AeroMed’s limitations is inconsistent with other evidence
in the record, and with his testimony in the bench trial on
inequitable conduct.”); id. at 8-9 (discussing the inconsis-
tencies in Hutton’s testimony regarding when he received
the brochure and whether he was aware AeroMed had
billing). 9 But the district court did not actually find that
Q: And was that practice based on
your understanding of the PTO’s rules
concerning the IDS?
A: Yes. That’s what the rules say.
J.A. 4662.
9 In particular, the district court stated that:
Dr. Hutton’s testimony in the jury trial about his
understanding of AeroMed's limitations is incon-
sistent with other evidence in the record, and with
his testimony in the bench trial on inequitable
conduct. For example, Dr. Hutton proffered evi-
dence in both the jury trial and bench trial to
prove that he did not understand AeroMed to
have electronic billing at all. In the bench trial,
however, he testified that he knew there was bill-
ing, but that it was not integrated. Dr. Hutton
further testified in the bench trial that because of
the way AeroMed did billing, it was clear to him
that Freeman (the inventor of AeroMed) did not
GOLDEN HOUR DATA v. EMSCHARTS 24
either Fuller or Hutton was aware of the inside contents
of the brochure. As findings of intent so often turn on a
district court’s credibility determinations, see, e.g., Monon
Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1263-64
(Fed. Cir. 2001), it is essential that the court provide
detailed factual findings with respect to crucial facts—
such as whether Fuller and/or Hutton read the entire
brochure; whether, knowing the information to be mate-
rial, they deliberately withheld it; or whether they delib-
erately refused to read the entire brochure in order to
avoid learning damaging information.
Golden Hour argues that no remand is necessary be-
cause the record evidence could not, in any event, support
a finding of intent. We disagree. Quite apart from the
highly material nature of the withheld reference, the
suspicious late production of the brochure, and the dis-
trict court’s findings as to witness credibility, there is
ample evidence that could support finding that Fuller or
Hutton or both actually read the brochure and deter-
mined to withhold its contents from the PTO, knowing it
to be material. First, Hutton regarded AeroMed as his
understand billing. A system which lacks billing
is very different from a system having billing that
does not function properly.
Inequitable Conduct Order, slip op. at 8 n.3 (emphasis in
original) (citation omitted). The district court also noted
that “[u]ntil the eve of the bench trial, Dr. Hutton main-
tained he could not recall when he received the brochure.
At the bench trial, however, Dr. Hutton recalled getting
the brochure in late March of 1998 at the AeroMedical
Services Midyear Conference.” Id. at 8-9 (footnote omit-
ted). Also, the district court observed that the inventor of
AeroMed testified that Dr. Hutton must have gotten the
brochure at a 1996 conference. Id. at 8 n.4.
25 GOLDEN HOUR DATA v. EMSCHARTS
primary competitor. In a December 1996 business plan,
Hutton told potential investors that “[t]he only similar
information management product in the air medical
transport market is a software product called Air Medical
Software (AMS), (Innovative Engineering, Lebanon NH).”
J.A. 7277. He repeated this statement in a proposal
seeking financing from the UCSD CONNECT Technology
Financial Forum. J.A. 10,211. And in an August 1997
“Business Overview” document, Hutton stated that
“Golden Hour has one major software competitor in our
initial market segment, called Aero Medical Software
(AMS) (Innovative Engineering). . . . The AMS software
does not comprehensively integrate information . . . The
AMS software cannot electronically bill or track inven-
tory.” J.A. 8262 (emphasis in original). It is likely that
Hutton would have been quite interested in a brochure
that described the competitor’s system.
Second, the information that Hutton originally re-
ceived about the AeroMed system was based on hearsay.
Hutton testified at the jury trial that his knowledge of the
AeroMed system at the time of filing the patent applica-
tion was from a colleague who told him that “there was no
integration with the billing system and billing was very
difficult from them.” Inequitable Conduct Order, slip op.
at 8. Hutton testified at the inequitable conduct bench
trial that prior to the filing date of the patent application,
his understanding of the AeroMed system “came from
physicians, and . . . program directors who had used the
system.” J.A. 4727. He also testified that it was his
understanding that the AeroMed system “had a pretty
good dispatch system[,] . . . it had some integration . . .
with a clinical system[,]” and it had billing, though the
system “had problems with [its] billing.” J.A. 4727-28.
During the preparation of the application, Hutton con-
veyed this knowledge of the AeroMed system to prosecu-
GOLDEN HOUR DATA v. EMSCHARTS 26
tion counsel and was “pretty involved in the process of
drafting and prosecuting” the application. J.A. 4726. The
imprecise nature of the earlier information received by
Hutton might suggest that Hutton and/or Fuller would
carefully review the Aero brochure.
Third, representations as to the AeroMed system were
central to the claim of patentability in the original appli-
cation. This centrality was demonstrated by the filing of
an IDS based on the brochure. This again suggests that
Fuller and/or Hutton would be interested in reading the
brochure.
Fourth, it might seem unlikely that a patent practi-
tioner would make representations as to the brochure in
an IDS without reading the entire brochure and would
not be interested in reading the entire brochure to deter-
mine whether there was anything in it that might disclose
its prior art status.
But this also is not a situation in which a finding of
deceptive intent is compelled. It is not our task to make
factual findings. Therefore we must remand to the dis-
trict court for it to make detailed factual findings in the
first instance. See Dennison Mfg. Co. v. Panduit Corp.,
475 U.S. 809, 811 (1986); see Gechter v. Davidson, 116
F.3d 1454, 1457 (Fed. Cir. 1997) (“When the opinion
explaining the decision lacks adequate fact findings,
meaningful review is not possible . . . .”); O’Neill v. United
States, 411 F.2d 139, 146 (3d Cir. 1969) (remanding to the
district court for further factual findings where factual
findings were conclusory and the reviewing court could
not determine what evidence the lower court accepted as
credible and what it rejected). In particular, the district
court must determine, in the first instance, whether
Hutton or Fuller in fact read the brochure and deliber-
27 GOLDEN HOUR DATA v. EMSCHARTS
ately decided to withhold damaging information from the
PTO.
II Joint Infringement
With respect to joint infringement, this court reviews
the grant of JMOL de novo. Novartis Pharms. Corp. v.
Abbott Labs., 375 F.3d 1328, 1332 (Fed. Cir. 2004). JMOL
is appropriate when “a party has been fully heard on an
issue during a jury trial and the court finds that a rea-
sonable jury would not have a legally sufficient eviden-
tiary basis to find for the party on that issue.” Fed. R.
Civ. P. 50(a)(1). We first consider the method claims, that
is, claims 15-22. Where the combined actions of multiple
parties are alleged to infringe process claims, the patent
holder must prove that one party exercised “control or
direction” over the entire process such that all steps of the
process can be attributed to the controlling party, i.e., the
“mastermind.” Muniauction, Inc. v. Thomson Corp., 532
F.3d 1318, 1329 (Fed. Cir. 2008) (citing BMC Res., Inc. v.
Paymentech, L.P., 498 F.3d 1373, 180-81 (Fed. Cir. 2007)).
Here, the district court concluded that the evidence of
control or direction was insufficient as a matter of law to
uphold a finding of joint infringement. We agree with the
district court that the evidence here was insufficient for
jury to infer control or direction. We see no need for
extended discussion of this issue and we affirm the dis-
trict court’s grant of JMOL as to the process claims the
jury found to be jointly infringed (claims 15-22).
The district court also granted JMOL as to systems
claims 1 and 6-8. On appeal Golden Hour apparently
argues that emsCharts was liable for infringement of
those claims because emsCharts sold its emsCharts.com
program and Softtech’s Flight Vector software together,
and together these systems comprised the systems of the
GOLDEN HOUR DATA v. EMSCHARTS 28
asserted claims. Such a sale might well create liability on
the part of emsCharts for the sale of the patented system,
whether or not emsCharts controlled Softtech. The
problem is that by agreement, claims 1 and 6-8 were
submitted to the jury only on a joint infringement theory.
Such a verdict can only be sustained if there was control
or direction of Softtech by emsCharts. Under these
circumstances, JMOL was properly granted as to the
systems claims as well as to the process claims. 10
AFFIRMED-IN-PART, VACATED-IN-PART, and
REMANDED
COSTS
No costs.
10 Contrary to the dissent’s suggestions, (1) the ma-
jority does not hold that even if there were new findings,
“intent to deceive was not established by clear and con-
vincing evidence,” see Dissenting Op. 1, and (2) the major-
ity does not sustain the district court’s JMOL ruling on
infringement of claims 1, 6-8, and 15-22 because “in-
fringement cannot be found as a matter of law,” see id. at
6, even with proper instructions.
United States Court of Appeals
for the Federal Circuit
__________________________
GOLDEN HOUR DATA SYSTEMS, INC.,
Plaintiff-Appellant,
v.
EMSCHARTS, INC.,
Defendant-Cross Appellant,
AND
SOFTTECH, LLC,
Defendant-Appellee.
__________________________
2009-1306, -1396
__________________________
Appeals from the United States District Court for the
Eastern District of Texas in Case No. 2:06-CV-381, Judge
T. John Ward.
__________________________
NEWMAN, Circuit Judge, dissenting; stay requested.
I. INEQUITABLE CONDUCT
The district court held the patent in suit unenforce-
able on the ground of “inequitable conduct.” The panel
majority holds, and I agree, that on the evidence that was
adduced before the district court, intent to deceive was
not established by clear and convincing evidence; how-
ever, if deceptive intent was not established at the trial of
this issue, by the party with the burden to do so, it is
GOLDEN HOUR DATA v. EMSCHARTS 2
inappropriate for this court to remand for another shot at
it.
As for materiality, I do not share the conclusion that
the undated AeroMed brochure, obtained at a trade show
(the Association of Aeromedical Services) a few weeks
after this patent application was filed, and found not to be
invalidating prior art, was so clearly and convincingly
“material to patentability” that failure to provide a copy of
the brochure while quoting its front page, invalidates the
patent that was found valid over the entire content of the
brochure. The record does not show that the brochure
was published before the Golden Hour patent application
was filed. The defendants provided no documentary
evidence of any publication date, and the district court did
not find the brochure to be prior art; their only evidence
was the “uh-huh’s” of the brochure’s author, quoted at
footnote 1 of the majority opinion.
The record showed that when the brochure came into
Golden Hour’s possession at the trade show, it was given
to Golden Hour’s patent attorney, who referred to it in the
Invention Disclosure Statement filed with the PTO,
including quotation of the cover page but not the inner
page. At the trial, the full brochure was in evidence, and
stressed by the defendants, and the jury found that it was
not invalidating. In view of the majority’s ruling that
deceptive intent was not established in the district court,
and the jury’s verdict of validity despite the brochure, the
charge of inequitable conduct should be laid to rest. At
most, this charge was deemed viable only because of
inconsistencies in the law, inconsistencies that this court
has presented for resolution in the pending en banc case
of Therasense, Inc. v. Becton, Dickinson & Co., Nos. 2008-
1511, -1512, -1513, -1514, -1595. The court’s Order,
reported at 2010 WL 1655391 (Fed. Cir. Apr. 26, 2010),
presents six detailed questions for en banc review, and
3 GOLDEN HOUR DATA v. EMSCHARTS
has received extensive amicus curiae participation.
Argument is scheduled for November 9, 2010. It is suffi-
ciently likely that the reasoning applied in this case could
be affected, that this appeal should be held pending
completion of the en banc proceedings. 1 The Supreme
Court has long followed such a procedure, as explained in,
e.g., Lawrence v. Chater, 516 U.S. 163, 181 (1996) (“We
regularly hold cases that involve the same issue as a case
on which certiorari has been granted and plenary review
is being conducted in order that (if appropriate) they may
be ‘GVR’d’ [grant of certiorari, vacatur, and remand] when
the case is decided.”) (Scalia, J., dissenting on other
grounds); see generally Eugene Gressman, et al., Supreme
Court Practice 345-49 (9th ed. 2007) (discussing the
Court’s practice whereby related cases are stayed while
the Court is elsewhere considering an issue that may
affect the related cases). It behooves this court to be
equally fair.
The charge of inequitable conduct carries high stakes
for both the attorney, whose career it can threaten, and
the applicant, who can lose a perfectly valid patent. In
Kingsdown Medical Consultants, Ltd. v. Hollister Inc.,
863 F.2d 867 (Fed. Cir. 1988), this court, recognizing the
abuses that had arisen, held en banc that both materiality
1 For example, the panel majority relies on a case
that applied the former version of PTO Rule 56 (the
“reasonable examiner” subjective standard), while selec-
tively referring to the current version of Rule 56, citing
Digital Control, Inc. v. Charles Machine Works, 437 F.3d
1309, 1316 (Fed. Cir. 2006) (“[I]f a misstatement or omis-
sion is material under the new Rule 56 standard, it is
material [for inequitable conduct]. Similarly, if a mis-
statement or omission is material under the ‘reasonable
examiner’ standard or under the older three tests, it is
also material.”). This discrepancy with the PTO standard
is subject to resolution in the pending en banc review.
GOLDEN HOUR DATA v. EMSCHARTS 4
and culpable intent had to be established by clear and
convincing evidence, that even gross negligence was
insufficient to establish inequitable conduct, and that
intent could not be inferred from materiality. For the
Golden Hour patent, the question of patentability in view
of the AeroMed brochure was before the jury, and the jury
verdict of validity despite the AeroMed brochure is not
challenged. Since intent to deceive was not established
before the trial judge, and materiality is reasonably
disputed, there is no basis for a second-bite ruling of
inequitable conduct. I would lay the matter to rest or, at
a minimum, stay the proceedings until conflicting prece-
dent is clarified in accordance with the pending en banc
hearing of the Therasense appeal. Thus I must, respect-
fully, dissent from the court’s treatment of this issue.
II. JOINT INFRINGEMENT
The court rules that when two entities collaborate to
infringe a patent, such that one performs some steps of
the claim and the other performs the other steps, there
cannot be any infringement, on any theory, unless one
entity “controls or directs” the activity of the other. As
the majority opinion reports, here the defendants “formed
a strategic partnership, enabled their two programs to
work together, and collaborated to sell the two programs
as a unit.” Maj. Op. at 8. The court now holds that such a
relationship avoids all liability for infringement, even
when the defendants collaborate to practice every limita-
tion of the claims. That ruling is incorrect as a matter of
law.
The parties focused on the “control or direction” crite-
rion as negating joint infringement, for this court has
stated, for example in Muniauction, Inc. v. Thomson
Corp., 532 F.3d 1318 (Fed. Cir. 2008), that there cannot
be infringement when entities collaborate to practice a
5 GOLDEN HOUR DATA v. EMSCHARTS
patented invention. Such a universal statement is incor-
rect. A collaborative effort as here, a “strategic partner-
ship” to sell the infringing system as a unit, is not
immune from infringement simply because the participat-
ing entities have a separate corporate status. The jury
found that the defendants emsCharts and Softtech com-
bined their procedures into an integrated system that met
all of the limitations of claims 1, 6-8, and 15-22, thus
finding joint infringement and inducement to infringe
these claims. The panel majority acknowledges that the
defendants in collaboration infringed the claims, but
without discussion overturns the jury verdict.
The evidence showed that emsCharts and Softtech in-
tegrated the functions of their software programs, and
sold the ensuing system as a package. The jury was
shown an October 2005 press release announcing “[t]his
partnership,” and promoting their resultant integrated
system in “seamless transition.” The press release states:
This partnership allows emsCharts to combine
their existing product line with Softtech’s CAD
[Computer Aided Dispatch] technology, enabling
them to deliver a complete pre-hospital data solu-
tion for Emergency Medical Services.
. . . . Flight Vector integrates with the em-
sCharts web-based EMS management application,
providing a seamless transition from CAD to
medical reports to billing through a user-friendly
web interface.
“emsCharts strives to deliver best-of-breed
products to our customers,” said Pete Goutmann,
Vice President and founder of emsCharts. “We be-
lieve that this strategic partnership with Softtech
will provide the air medical industry with a com-
plete flight management solution – delivering the
best of charting with the best of dispatch.”
GOLDEN HOUR DATA v. EMSCHARTS 6
J.A.5030. On this and other evidence, a reasonable jury
could have found that this collaborative activity infringed
the various claims, as shown in the verdict form. My
colleagues err in discarding this verdict on the ground
that infringement cannot be found as a matter of law.
From this ruling, I must again dissent.