The SkunK went through the filing and tried to find every date so one could see a timeline. I may find dates in other filing that I can add to this so we can keep it straight:
Aug 2004 Clean Tech filed first COES Provisional Patent Application “050”
2004 Inventors Disclosed Technology to ICM. ICM executed Confidentiality Agreement. ICM purchases two authorized COES.
2005 The Inventors invited Ethanol manufacturers to symposium to hear about COES – 30% attended.
May 2005 Clean Tech filed first COES Non-Provisional Patent Application “859”
23 Feb 2006 '858 patent filed
27 June 2008 Tricanter Purchase and Installation Agreement with ICM & Cardinal. Greenshift bid on the job, but was not chosen. Greenshift believes ICM's bid was cheaper because ICM had little or no R&D - they instead used Greenshifts Intellectual Property with out paying for it. (Didn't dear ol'mom teach me a word for that?)
(This Greenshift argument is on 2nd para, p 27 - 2nd part of Cardinal filing - or - page 34 of 40 of entire PDF - those page numbers are on top of page in filing)
Nov 2008 Cardinal Produced Corn Oil & Ethanol
July 2009 Greenshift sent letter of notice to Cardinal
Aug 2009 CleanTech receives response about Cardinal letter - from ICM’s counsel - with Prior art argument
13 Aug 2009 CleanTech submits all ICM’s remaining prior art arguments to patent examiner
25 Aug 2009 Patent Examiner issued Notice of allowance allowing all of the then pending claims – OVER ALL prior art arguments.
13 Oct 2009 ‘858 patent Issued, claiming priority back to the provisional ‘050” application
The one thing that has to be remembered is that Greenshift does not claim to have invented centrifuges. The old timer with the spooky stare in the picture had something to do with it. A centrifuge is basically what a milk/cream separator is and that has been around for over a hundred years.* Various companies have been using centrifuges to
separate out solids and oils for a long time. Many companies were using centrifuges to separate the DDGs from the mash liquids (stillage, syrup whatever) since commercial ethanol production began. The argument that if some company was already using a centrifuge for another purpose - it can therefore violate any US Patent that includes a centrifuge - is in the Skunk's humble unwashed opinion: "flippin' mad dog crazy". **Greenshift, through Cleantech, through the original inventors, claims and was awarded the patents for Corn Oil Extraction System. This is what brought SkunK to this investment - now over two years ago - and this is what will keep him here - through thick and thin.
One of the most persuasive arguments the SkunK found in this filing is the revelation that the patent examiner had access to the ICM claims of prior art and then still ruled to issue the patents to GreenShift.
That should make a TOUGH row to hoe for ICM - or anyone - to invalidate the patents. Like an NFL instant replay - it seems the weight is given to the first call. Then the red flag is thrown - arguments (prior art) - can be made and reviewed (instant replay) and another decision is given concerning the challenge made. It appears the patent guy who made the first call has already watched the replay and listened to the arguments!
I don't know the odds of a call being reversed at this point - but I think the chances of 'da NFL commissioner coming out of his sky box to change the call has gotta be pretty slim!
SkunK
*De Laval made important contributions to the dairy industry, including the first centrifugal milk-cream separator and early milking machines, the first of which he patented in 1894.
http://en.wikipedia.org/wiki/Gustaf_de_Laval
** My apologies to ol'yeller and all the other "flippin' mad dogs" I may have offended with this blog.
http://www.imdb.com/title/tt0050798/
Here is another "Flippin" MAD DOGMD 20/20 a.k.a. Mad Dog is an American fortified wine. MD 20/20 has an alcohol content that varies by flavor from 13% to 18% (with most of the 18% varieties discontinued, although Red Grape is reportedly available in 18% ABV). The MD stands for the Mogen David wine company which produces MD 20/20 as the 20/20 wine company
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6 comments:
I agree with the Skunk. Since the USPTO has already conducted thorough review of the prior art, including ICM arguments, the judge should have no reason to overturn the USPTO's issuance of the patent(s) to GreenShift.
It seems like a pretty cut & dried case of patent infringement to me. At some point, these defendents are going to realize that they are wasting money on legal fees and penalty royalty rates that will be at least 3X the "reasonable royalty" rate. Since they are on the losing side of this one, they will be stuck with paying those legal fees, the penalty royalty rate, interest of 10% - 20%, and possibly additional awards.
Why pay all that, with the meter running at treble damages, when you can pay a much lower royalty by simply settling the case and moving on?
According to one article I read about patent cases, judges give great deference to the lengthy & thorough review conducted by the USPTO.
Indeed, the whole reason for having such a lengthy and thorough process is that the court system would be overburdened, if it had to conduct such a lengthy review of prior art every time a case came to trial.
According to Exhibit 3 in this article, less than 5% of patent infringement cases ever make it to trial.
Therefore, it is a good bet that we will see a pre-trial settlement sooner rather than later.
http://www.docs.piausa.org/ABA/07-06-01-ABA-Report-On-Patent-Damages.pdf
For those who really want to dig deep on the question of damages, this 50 page review from the Harvard Journal of Law and Technology is a great place to start.
http://jolt.law.harvard.edu/articles/pdf/v05/05HarvJLTech095.pdf
It seems fairly certain to me that we can get at least 60% of the corn oil revenue from infringing plants.
The big question in my mind, though, is can we also get the lost profit on equipment sales. Remember, at one point we were making money on the equipment sales as well as on the process itself.
Can we also recoup a profit margin on the equipment sales from a company like Westphalia?
Given GreenShift's recent announcement of the new business model (licenses & tech support only), it appears that management has decided not to go after the equipment sales, after all.
In order to establish a precedent of tough enforcement and penalties that will discourage future infringement, we ought to argue for damages that are greater than the present value of the infringer's corn oil profits.
In other words, hit them so hard that it sends shockwaves through the industry, which strongly discourage future infringement.
Given that GreenShift's cost of equity during the past 12-18 months has been around 50%, I also believe that we should argue for an above average interest rate on the damages.
10%-20% is the "average" range of interest rates on patent damages.
GreenShift's cost of equity is far greater than that these days.
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