GREENSHIFT’S REPLY

Below are SkunK selected portions of this 15Dec2009 dated document in one of the three ongoing legal actions involving the Greenshift COES patents. The link below is for you if you wish to read the whole thing. I encourage you to do it . . .

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Plaintiffs’ (GEA WESTFALIA SEPARATOR, INC. and ACE ETHANOL, LLC) arguments in opposition to the motion to dismiss lack common sense.********
III. THE LEGISLATIVE HISTORY OF THE AMERICAN INVENTORS PROTECTION ACT OF 1999 SUPPORTS GREENSHIFT
Prior to November 29, 2000, United States patent applications were held in confidence until and unless a patent was actually granted. The American Inventors Protection Act of 1999, as amended by the Intellectual Property and High Technology Technical Amendments Act of 2002 (“AIPA”) (P.L. 106-113, 113 Stat. 1501 (1999); P.L. 107-273, 116 Stat. 1757 (2002))amended 35 U.S.C. § 122 to require that, in most cases, pending applications be published 18 months after the claimed priority date. The AIPA also provided for provisional royalty rights for the period between publication and issuance in § 154(d). The publication of patent applications and other proposed patent reforms in the AIPA generated fierce debates in and out of Congress.

See Ergenzinger, Jr.: “The American Inventor’s 5 See Lammon-Hilinski, Comment: “The American Inventors Protection Act: How Should The Courts Treat The ‘Substantially Identical’ Requirement Of The New Provisional Rights Statute?” 40 Duq. L. Rev. 667 (Summer 2002) (arguing that the identity standard should be different in reissue and provisional rights cases due to the different policies implicated). Case 1:09-cv-07686-LMM Document 26 Filed 12/15/2009 4 Protection Act: A Legislative History” 7 Wake Forest Intell. Prop. L.J. 145 (Winter 2006).

Rep. Rohrabacher (R-Calif) maintained that the 18-month publication provision would allow large multinational corporations to misappropriate technology from independent inventors, and went so far as to nickname one House bill that contained the publication provision (H.R. 400) the “Steal American Technology Bill.” See H.R. 811, 105th Cong. (1997).

One apparent compromise was Section 4504 of the AIPA, codified in amended 35 U.S.C. § 154(d), which allowed for provisional rights for the period between publication and issuance. This intended benefit apparently mollified some of the concern over the loss of confidentiality due to the 18-month publication rule in amended 35 U.S.C.§122. See 4 Chisum on Patents § 11.02[4][e] (“As compensation for the earlier disclosure of an inventor’s technology provided by eighteen-month publication, the 1999 Act created as an additional right of a patent, a ‘provisional’ right to compensation.”). The arguments offered by Westfalia and Ace would effectively nullify the benefit afforded by this compromise and create a cause of action against a patent owner that attempts to take advantage of the benefits of § 154(d). (Opposition, page 7)
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Finally, GreenShift continues to maintain that it is implausible that there is a direct causal connection between the allegedly improper § 154(d) notice and any alleged commercial injury suffered by Westfalia. (Opposition, page 24) Instead, Westfalia’s customers are displeased because Westfalia has contributed to and/or induced their infringement of GreenShift’s patented technology. Simply alleging a commercial injury does not establish causation
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Based on Stephens, it surely cannot be objectively baseless for GreenShift to believe that the recipients of the July Letters infringed the published claims and also infringe the amended claims. Thus, as did the plaintiff in Stephens, GreenShift had the right to send the July Letters and to await patent issuance to see if its infringement allegations were correct. It turns out GreenShift was correct.
Whole Document:
http://docs.google.com/fileview?id=0B_ch8gAs4lCcZDMzYjQzYTUtYmY1OC00NDc4LTgzMmUtZTcwYzc1OTkxOTNl&hl=en

Good Luck to Investors,
SkunK