We have a new GreenShift filing in the ICM, INC., v. GS CLEANTECH CORPORATION case. Sometimes it takes a while to establish tone. Not in this case. Tone is well covered in the first sentence of the Introduction:
"ICM's claims fail the common sense test. ICM argues that GreenShift is liable under various Kansas state law causes of action for complying with the notification steps required to be taken under the Patent Act (35 U.S.c. § i 54(d)) to protect its right to seek pre-issuance royalties against infringers. However, at the same time, ICM continues to admit that it and the ethanol producers that use lCM equipment infringe the claims both as published and amended during prosecution and as issued in United States Patent No. 7,601,858 (the '''858 patent"). ICM does not expressly address this fundamental incongruity but rather attempts to tum 35 U.S.c. § 154(d) on its head to hold GreenShift liable for taking actions required under the Patent Act to secure the pre-issuance royalties."
Here GreenShift claims that ICM originally failed to Plead A Lanham Act Claim:
"Now for the first time, after GreenShift moved to dismiss, ICM argues that Count I states a Lanham Act claim against GreenShift for false advertising, despite the fact that neither the Lanham Act nor false advertising are even referenced in the First Amended Complaint."
ICM Lacks Standing To Plead A Lanham Act Claim:
"Notwithstanding the lack of any mention in its Complaint and the First Amended Complaint, ICM focuses the first three pages of its argument on its new claim. Although lCM's new direction telegraphs lCM's lack of confidence in the claims it actually did make in its Complaint and the First Amended Complaint (one of which it now voluntarily dismisses), a Lanham Act claim is not stated in the Complaint or First Amended Complaint, so it should not be considered."
Providing Notice Under § 154(d) Does Not Violate The Lanham Act.:
"ICM has failed to cite even a single case where a patentee was held liable under the Lanham Act for providing actual notice to actual infringers under § 154( d)."
Footnotes are always interesting:
2 ICM has repeatedly mischaracterized GreenShift's arguments and resorted to hurling insults at GreenShift ("those letters included statements beyond the scope of notice required by law which were in fact false"). (See Plaintiffs Response in Opposition To Defendants' Motion To Dismiss ("Opposition"), Docket Entry No. 35, p. 6). This conduct is unfortunate and strongly suggests that ICM realizes that its substantive arguments fail the common sense test.
6 GreenShift notes that ICM withdraws its claim for a violation of the Kansas Consumer Protection Act ("KCPA"). (Opposition, p. 18). It is unfortunate that ICM forced GreenShift to brief an issue that on its face could not be asserted by ICM.
SEE ENTIRE FILING HERE
The SkunK encourages everyone to read through this and all the filings and make up your own mind. Information is a good thing.
SkunK
Tuesday, March 23, 2010
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3 comments:
Once again, we see that the people of Kansas are more adept at growing corn than managing new technologies.
Indeed, it seems that even their most educated and experienced lawyers are probably better at driving the old man's tractor than they are at litigating under the US legal system.
Even a non-attorney like me knows that Article VI, Clause 2 of the US Constitution explicitly states that federal law trumps state law.
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
That's why these lame attempts to use Kansas State Law to cover up their alleged patent infringement will hold no water whatsoever.
ICM is just wasting their money and their clients' money trying to defend these patent infringement claims.
Look at the scattershot and unsubstantiated legal arguments they are putting forth, almost randomly.
1. Patent invalidation.
2. False marketing.
3. Unfair business practices.
They are just throwing up whatever comes to mind and hoping that it sticks, without any regard to real legal logic.
What's next? God created Corn Oil Extraction in the Garden of Eden, and therefore GreenShift cannot patent it??!!
US patent laws are federal, as called for in the US Constitution. Article I, Section 8, Clause 8 of the US Constitution explicitly grants to Congress the power and duty to establish patent laws for the nation.
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
Its all going to end up consolidated in the federal court system as a group of patent infringement cases.
GreenShift asked for New York, but will probably settle on Indiana, which is where it should be, right along with the patent infringement case(s).
This whole mess just boils down to a single cluster of inventions and patents issued to GreenShift.
The rest is just noise.
If ICM had patent applications of their own, or at least had not admitted infringement in their own court filings, then they might have at least a chance.
Since they have no patent applications of their own and have admitted infringement, their case really is as weak as it appears.
I am somewhat baffled by ICM's insistance on fighting. Vandergriend must be one of these guys who just orders the attorneys to keep fighting, regardless of the merits of the case.
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