Does ICM have a patent for a COES? We learn in the recent GreenShift Filing that ICM relies on this patent: 7,297,2361
"Cardinal's reliance on ICM's US patent number 7,297,2361 is also misplaced. (Opposition, p. 11). Cardinal essentially argues that since the '236 patent allegedly teaches heating thin stillage with steam during an evaporation stage of the dry milling process, then somehow the claims of the '858 patent are limited to heating thin stillage during a concentration stage of the dry milling process. (Id) This is simply not true.
This footnote says: The '236 patent is an ICM patent and shows the state of its technology, which did contemplate oil extraction from thin stillage." This Patent is described as "Ethanol distillation process". Here is the best short summary I could find:
"Thus, the invention process arrangement meets the objects noted above by providing an ethanol distillation process having evaporators in sets of evaporators that can be selectively taken off-line for cleaning and maintenance without effecting the operation of the overall ethanol distillation process. The problems associated with shutting down an ethanol distillation facility in order to clean and maintain evaporators have been eliminated. Moreover, the invention process arrangement meets the objects noted above by providing an ethanol distillation process in which second effect steam from a set of second effect evaporators can be used to provide heat for the beer column. This allows distillation to be conducted with a minimum usage of plant steam."
Although I'm sure this patent may provide a step forward (after all it was approved by the patent office), but to tell the truth, the SkunK could not find the word "extraction", in this "ICM" patent, and word the "oil" is only used inside the word "boil". The SkunK is not sure what it has to do with this case. Happy to find out if anybody can explain it to me in the comments of this post or an email. Both of the Blue quotes above come from the most recent GreenShift filing here. (bottom of page 5.)
SkunK
Wednesday, April 7, 2010
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I don't have the time get deep into this patent, but I find the timing of its presentation to the court to be very suspicious and consistent with the alleged strategy of delaying and weakening GreenShift with lengthy litigation.
They throw up this complicated patent that is tangentially related to the disputed technology AT THE LAST MINUTE, just before the judge is scheduled to rule on the Motion for Preliminary Injunction. They are clearly just trying to confuse the issue enough to avoid the Preliminary Injunction.
Furthermore, the scope of the arguments coming from ICM's lawyers remains disjointed and lacking an overarching strategy. If invalidation based on prior art is the core of the issue, here, then why sue for unfair trade practices? There doesn't seem to be coherence to ICM's arguments. They strike me as just lurching, haphazardly from one argument to the next, hoping that one or the other will work.
If they had a true and honest case about prior art, why wouldn't they just stick with that argument, consistently; and why would they sue for unfair trade practices - an entirely different issue altogether.
Furhtermore, given that the lengthy & comprehensive review of the GreenShift patent by the USPTO was challenged already, at the USPTO, by ICM, there seems to me little doubt that this ICM patent issue came up already during that review and was decided in favor of GreenShift by the patent examiners, who had far more time to make an informed decision than this judge does right now.
While ICM's lawyers may argue that the examiners are overworked, without sufficient time to make a good decision, that argument would strike me as hollow, because any patent that is actively challenged during the USPTO process requires, by law, more careful and thorough review by the USPTO. Indeed, it took many years of back and forth with the USPTO to get GreenShift's patent to the point of issuance last Fall.
If the GreenShift patent had not been actively challenged by ICM during that review process, then it would be possible that the patent had slipped through without careful review.
But, it wasn't. It was actively and rigorously challenged by ICM. And, the process of challenging a patent at the USPTO - known as patent interference - forces the USPTO to spend a great deal of extra time and resources on that particular patent. So, the argument that this patent wasn't carefully reviewed at the USPTO falls rather flat ... at least in my mind.
As I posted a while back, the percentages show that judges more often than not defer to the decisions of the USPTO.
I would think that an issued patent, which survived an active and rigorous interference proceeding at the USPTO (as GERS' patent did), would be even more likely than the average patent to be upheld by the judge, because the interference process is more rigorous than a standard, unchallenged patent issuance.
The study of the historical statistics shows clearly that GreenShift is the favorite to win this case. That their patent already survived the interference proceeding strengthens their odds of success even further.
Still, there remains great uncertainty about how long this litigation will last, before the outcome is reached. Even then, there is still the possibility of appeal.
We could see a preliminary injunction, a capitulation by ICM and Cardinal, and a multi-million dollar settlement in favor of GreenShift by the end of April.
Or, this could turn into a 3-5 year long trial, complete with all kinds of shenanigans, delay tactics, and the like, before we see a settlement.
The bottom line is that GERS is strongly favored to win, but predicting when that will happen is more difficult.
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