GreenShift's Answer to Cardinal

I mentioned before that GreenShift will file their brief on or before 5 April.  Well here it is below - now whats left is the court date on the 15th - concerning the preliminary injunction against Cardinal - to shut down their non-patented COES.  The SkunK picked out a few choice words that caught his eye.  Read it all and figure for yourself what's important. 

Cardinal further complains that it has invested several million dollars in purchasing and installing this equipment at a point where no alleged patent rights of CleanTech existed, and Cardinal Ethanol’s inability to recover that investment through corn oil sales, if enjoined, will cause it harm. However, at the same time, Cardinal boasts to the public that it will continue to infringe and that it is being indemnified by ICM. Cardinal’s complaint runs hollow since it knowingly assumed the risk of monetary damages and an injunction when it purchased equipment to perform a patent-pending method despite the existence of CleanTech’s published application. CleanTech has actively marketed its technology to the entire U.S. ethanol industry since 2004. CleanTech’s patent published in 2006.  The industry was clearly on notice and aware of CleanTech’s patented technology. Cardinal’s equipment supplier, ICM, had actual specific knowledge of CleanTech’s pending application.

Yet, Cardinal ignored these risks and invested several million dollars in a system used solely to infringe CleanTech’s now-patented method.

The Federal Circuit has consistently held that “[o]ne who elects to build a business on a product found to infringe cannot be heard to complain if an injunction against continuing infringement destroys the business so elected.”

Cardinal does not deny - and thus admits - that its corn oil extraction system infringes the asserted claims of the '858 patent. Cardinal's invalidity arguments are primarily a rehashing of the prior art cited during the prosecution of the '858 patent and are also premised on Cardinal's fundamental misunderstanding of the invention as claimed. Although Cardinal argues that the invention in the '858 patent is invalid, Cardinal has failed to show that these novel methods were ever thought of prior to CleanTech's invention. As CleanTech has a very high likelihood of success on the merits and continues to suffer irreparable harm, the motion for preliminary injunction should be granted.

Given Cardinal's effective admission of infringement and its invalidity position consisting basically of a rehashing of the patent's prosecution history, CleanTech has a very high likelihood of success on the merits. Coupling this high likelihood of success with the irreparable harm suffered by CleanTech (including Cardinal's admitted continued willful infringement), this matter is ripe for the grant of a preliminary injunction.
The problem solved by the '858 patent  One of the keys to CleanTech's invention - a point entirely missed by Cardinal - is the advantage of introducing thin stillage into the centrifuge after the thin stillage has been evaporated or concentrated by the removal of water content (i.e. moisture). In the Background of the Invention of the '858 patent, CleanTech explains:

Efforts to recover the valuable oil from this byproduct have not been successful [prior to GreenShift's Invention] in terms of efficiency or economy. For example, one approach involves attempting to separate the oil from the thin stillage before the evaporation stage, such as using a centrifuge. However, spinning the thin stillage at this stage does not produce usable oil, but rather merely creates an undesirable emulsion phase requiring further processing p.9

It is noteworthy that all of Cardinal's arguments related to the alleged invalidity of the '858 patent, including what would be obvious to skilled in the art, are nothing more than attorney argument. 

What is absolutely fatal about Cardinal's argument is that its proposed thin stillage obtained a moisture content of 85%, not by concentrating the thin stillage to remove water thus weakening the bonds between the oil and water, but rather by virtue of simply diluting the water in the thin stillage with additional solids (i.e. 15% solids content). Consequently, if one were to introduce Cardinal's proposed thin stillage into a centrifuge it would primarily produce the undesirable emulsion described above because the oil and water bonds would not have been weakened during an evaporation or concentration step.
 
Finally, Cardinal's argument that CleanTech somehow dissuaded the examiner from reviewing certain provisions in Prevost is a complete red herring, thoroughly lacks merit and ignores the clear prosecution history.

Pivotally here, the court added that “[t]he fact that other infringers may be in the marketplace does not negate irreparable harm. A patentee does not have to sue all infringers at once. Picking off one infringer at a time is not inconsistent with being irreparably harmed.” Id. at 975 (emphasis added). After responding to declaratory judgment suits filed by centrifuge manufacturers in New York and Kansas, CleanTech continued to market its oil extraction technology only to continue to be rebuffed by almost the entire ethanol industry. It became clear that CleanTech would be harmed irreparably if it did not pursue preliminary injunctive relief. By targeting a clear direct infringer, such as Cardinal, CleanTech may be able to achieve a domino effect: not only will Cardinal stop infringing, but other infringers will also see that ethanol plants can be forced to cease infringing. Stopping one large direct infringer at a time is the most effective and efficient use of CleanTech’s and the judicial system’s scarce resources. 
See it all Here!

Here is a Dave Winsness statement to go with it
 
SkunK