ENTRY & ORDER
On April 13, 2010, the parties appeared by counsel for a Telephonic Status Conference. The parties informed the Court that the motions to dismiss or, in the alternative, to transfer remain pending in the United States District Court for the District of Kansas. The Court ruled on defendant’s, Cardinal Ethanol, LLC (“Defendant”), Motion to Stay and Transfer on the record. The Court Reporter was Fred Pratt.
For the reasons stated on the record, Defendant’s Motion to Stay (Dkt. No. 23) is GRANTED. The Hearing on plaintiff’s, GS Cleantech Corporation, Motion for Preliminary Injunction, set for Thursday, April 15, 2010, is hereby VACATED. The Court will issue an order granting Defendant’s Motion to Transfer (Dkt. No. 23) after the Kansas District Court resolves the pending motions to dismiss or, in the alternative, to transfer. The Court hereby ORDERS Defendant to file a Notice of Decision by the Kansas District Court after that court has issued its rulings.
IT IS SO ORDERED this 13th day of April, 2010.
ALL HERE
SkunK
I believe this means that Cardinal will be able to continue to produce corn oil during the proceedings that will continue to move forward. Although a preliminary injunction would have produced significant additional pressures to get an early settlement, if GreenShift eventually prevails, present production will likely be taken into account in the settlement. It seems that the next step is a promised decision in Kansas to dismiss or transfer. It seems things are being consolidated? To a single case? In New York? We should get some information in the Annual Report coming out today or tomorrow.
Wednesday, April 14, 2010
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17 comments:
What does that mean "Injunction... is hereby vacated"? It seems that the ruling was in favor of cardinal and is that it then?
No, that's not it.
That just means that a complete trial will be conducted before the judge forces Cardinal to shut off its corn oil extraction system.
Under patent law, the judge can issue a "preliminary injunction", in cases where it seems reasonably obvious that infringement has occured.
If the preliminary injunction had been granted, then Cardinal would've had to shut down the COES during the course of the rest of the trial. That's why it's called "preliminary". It occurs before the complete trial has been conducted.
In this case, the prelminary injunction was NOT granted. So, Cardinal can continue to run the COES during the trial.
Now, we go into the actual trial itself, which could take months or years.
The failure to achieve a preliminary injunction means that GreenShift did not convince the judge that infringement was "reasonably obvious" and that judge felt it should go to full trial before any kind of injunction is issued.
It is a setback for GreenShift, but it is not the end of the story.
It is a minor victory for ICM, but they can still lose this thing in the long run.
Most of all, it is a huge victory for the lawyers, because the full trial will really run up the legal bills!
Unfortunately, even though GreenShift's attorneys are supposed to do what is in the best interest of GreenShift, their financial interest is for this thing to go to trial.
Right there in the abstract of the patent, it says
"The fermentation portion produces beer. The distillation portion, the condensation and dehydration portion and the separation and drying portion receives beer from the fermentation portion and produces hot ethanol vapor and thin stillage."
Those two sentences describe the intended products of the process claimed by ICM.
Patents are supposed to be "Useful". In order to be "useful" a process patent like ICM's, should produce useful products.
The products VanderGriend describes are very clearly stated in the very first paragraph of the patent:
(1) Beer,
(2) Hot Ethanol Vapor,
(3) Thin Stillage.
It seems to me that one needn't read any further than that, let alone have a lengthy trial.
The Vandergriend patent is a process that produces Beer, Hot Ethanol Vapor, and Thin Stillage.
It doesn't produce inedible corn oil, which is what this dispute is about!!!!
I am saddened by the obvious bias of the judge.
He is biased in favor of Indiana and fellow corn-stater ICM; and he is probably also age-biased against the young upstarts at GreenShift.
Possibly, he and/or his political party are receiving favors and money behind the scenes, as well.
Either that, or he's just a plain, stupid idiot.
Good thing the Skunk Blog isn't a courtroom, or I'd be held in contempt for that last one!!
Unfortunately, an Indiana jury is likely to be even more biased than the Indiana judge.
We ought to get a change in venue, for sure!
Why the hell are we in Indiana Court anyways?!!
Bring 'em all down here to the Eastern District of Texas.
The Rocket Docket ... fast, fair, efficient patent litigation!!!
Lower cost hotels for the attorneys as well!
HMMMM ... let's see now ...
one patented process produces beer, hot ethanol vapor, and thin stillage
the other produces inedible corn oil
It doesn't taken a God Damn rocket scientist to see that these cover two different processes!
The judge is protecting his home state's economy, plain and simple.
His ruling has nothing to do with justice, as it is intended to be applied .... he is just protecting financial interests.
Kangeroo Court!
It doesn't matter if Vandergriend's process happened to use the same piece of equipment - an evaporator - as the GreenShift process.
Many different processes can use the same piece of equipment and still be separate and distinct processes.
A process is defined by a series of steps, which produce a desired, useful product. A process is not defined by a single piece of equipment.
Pieces of equipment, known as 'apparati' in patent lingo, are defined separately and distinctly from processes. This conflict relates to two different processes.
Neither party is claiming a patent on an evaporator, per se.
What each party is claiming is the use of an evaporator in its particular process, which is defined as a series of steps that produce a particular result.
As long as the processes are separate and distinct, then there is no conflict in the fact that both different processes happen to use an evaporator.
And, since processes are intended to produce useful products for trade and commerce, the quick and easy test of whether these two patents conflict is to simply ask, "what useful product(s) do they produce?"
That question is easily answered by simply looking at the abstract of the respective paragraphs. One need go no further than that.
Vandergriend's patented process produces beer, thin stillage, and hot ethanol vapor.
Winsness' patented processes produce inedible corn oil.
Different products, different patents. It is as simply as that.
Any attempt to make the issue more confusing than that is just unethical lawyering, intended to confuse the issue and run up the legal bills.
Any judgement that doesn't recognize that simple fact is unethical judging designed to protect home-state financial interests.
A process is a series of steps. For example ...
1. Mow the lawn with lawnmower.
2. Rake the lawn with rake.
3. Collect grass clippings in wheelbarrow.
4. Transport grass clippings to compost pile.
5. Empty grass clippings into compost pile.
6. Turn compost several times over several weeks.
7. Harvest compost.
That is a "process".
Here's another "process".
1. Dig hole in ground.
2. Place dirt in wheelbarrow.
3. Transport dirt to stream.
4. Empty dirt into stream, to build dam in stream.
The first process is clearly different from the second process, right? Different steps and different end products.
The first process produces compost - a useful product - from grass clippings.
The second process produces an earthen dam in a stream. Different steps, different end products.
Now, both processes happen to use the same piece of equipment - a wheelbarrow. But, that doesn't make them the same process. They are still very different processes that produce different outcomes and different useful end products.
Neither party has a patent on the wheelbarrow. That patent belongs to a third party, the inventor of the wheelbarrow, and both process patents require the purchase of the wheelbarrow from that third party.
This example is analagous to this case. The two parties have separate and distinct process patents that happen to use the same piece of equipment. That doesn't make them conflicting patents.
ICM's lawyers are trying to say that because both processes happen to use an evaporator that they are conflicting process patents.
That is simply WRONG. That's just not how the patent system works. And any judge who buys that argument is either as corrupt as the day is long or totally ignorant of patent law.
There are probably 100 or more different uses of an evaporator. Just call your friendly evaporator salesman, and I'm sure he'll tell you all kinds of uses for the darn thing.
The fact that ICM has a patent that also use an evaporator is irrelevant to this case.
These are separate and distinct process patents. Both were rightfully issued after extensive review by the USPTO. But, the existence of ICM's patent is, by no means a valid defense against infringement of GreenShift's patents.
And, I question the ethics and/or competency of any judge who doesn't see these obvious facts in this case.
"process patents" are different from "apparatus patents"
Apparatus patents cover equipment designs, like wheelbarrows and evaporators.
Process patents cover 'processes', like the series of steps that produces compost, or the series of steps that produces inedible corn oil.
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