Here is a 19 page new filing. At 8 cents a page this is really cutting in to my haircut money. Looks like its reporting to the judge the results of the discussion between GreenShift and the defendants about how the discovery should go. Here is just a nibble of the 19 pages. .
I. Counsel for Plaintiff and Defendants agree to the following:
1. Discovery will be conducted with respect to issues of patent validity, enforceability, infringement and Defendant non-patent counterclaims.
2. Plaintiff will not proceed with a motion for Preliminary Injunction.
3. A draft Protective Order is under review and will be submitted to the Court for approval.
4. CleanTech previously issued discovery that will be treated as served as of date of 26(f) conference.
5. The following dates of the Case Management will be amended and reset as follows:
///. . . .
Markman Hearing [Current] April 25, 2011 [Proposed] On or after July 1, 2011
SEE HERE
SkunK
Thursday, February 17, 2011
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9 comments:
The major legal strategy of delay, delay, and more delay is in place for the defendants. If GERS case is so strong why are they voluntarily agreeing to this? It is difficult to push you own legal counsel but sometimes that is necessary. GERS is the client. The mounting billable hours that counsel gets to extend through this agreement are, in the final analysis, coming from share holder equity. I do not view this as good news. Am I missing something?
Why are we dropping the preliminary Injunction? WTH
One hopeful possibility is that this all preamble to a negotiated settlement. Nothing else makes sense.
http://www.ipmall.org/hosted_resources/IDEA/33_IDEA/33-2_IDEA_323_Shapiro.pdf
Hoping for a settlement...
"In addition, if the patentee is hoping for a settlement, a defendant, which has
been victorious in the motion, may be less willing to settle after expending the resources,
time and money to fend off the motion. Finally, in the rush of prosecuting the preliminary
injunction motion, damaging mistakes and statements can be made which can diminish
the chances of ultimate success at trial."
Avoiding delay...
"Practice Tip for Patentee: Counsel should avoid delay in bringing on a motion for
preliminary injunction to the extent possible. Further, consider carefully whether an offer
to license might hurt the patentee's chances of obtaining a preliminary injunction."
Too early in the case...
"Practice Tip for Alleged Infringer: Although a preliminary injunction can be obtained
shortly after commencement of the action, some courts have expressed a reluctance to
grant an injunction early in a case."
Expensive bonds...
"Practice Tip for Patentee: Before filing a motion for preliminary injunction, a patentee
should consider carefully whether such a motion is prudent. Although there are often
advantages to be gained by bringing on a preliminary injunction motion, there can also be
a significant downside. A bond or other security is generally required before a *327
preliminary injunction will come into effect [n18] and bond premiums can be substantial.
In addition, if the patentee ultimately loses the action at trial, the alleged infringer may
recoup its damages and costs caused by and incidental to the injunction against the bond,
for which the patentee will be held responsible by the surety. Preparation of the moving
and reply papers can be very expensive and there may be expedited discovery relating to
the motion."
Public interest...
"The Federal Circuit has explained that the focus of the district court's public interest
analysis should be whether there exists some critical public interest that would be injured
by the grant of preliminary relief. [n147] Therefore, the Federal Circuit has affirmed the
denial of preliminary injunctions where the public health and welfare would be adversely
affected by a preliminary injunction. [n148] Preliminary injunctions have also been
denied where the grant of the injunction sought would "severely disrupt the supply of
cotton bale wrap to the domestic cotton industry" [n149] and where the alleged infringer
would be forced to lay off *347 many employees and "the injunction would leave many
third party computer manufacturers without a source of supply of tape drives for a
significant period of time resulting in large financial losses to them as well."
Balance of harm...
Being that we're profitable, Greenshift will not go under if a preliminary injunction isn't issued.
I think C+C know exactly what they're doing, and I agree, a preliminary injunction is not in our best interests. An injunction can still occur later on, like after the Marksmen hearing.
It's too early in the case, it's expensive, it can backfire, it's a risky move, damages CAN be undone by a monetary settlement.
With record high corn oil prices, forcing the industry to halt corn oil extraction would hurt the interests of the public.
This will speed things up. A preliminary injunction is an uneeded risk.
Very informative. Would a move toward a settlement also look this at this stage?
Why would we WANT an injunction?
We WANT people to use the technology, remember? That is Greenshift's business model. Use it and pay us 20%.
We want the infringers to keep racking up the gallons recovered, so if/when we win or settle, we have a number... 100 Million gallons at so and so cents per gallon to be paid to us.
At first glance it seemed like nothing went GERS way. Then i remembered who we have defending us. Then i thought, hmm, more time being provided for discussion of settlements. maybe that's just wishful thinking??
We may have a settlement on our hands.
Draft protective order...
"Parties may be persuaded to stipulate to a protective order for various reasons, including
"an effort to move toward mediation/settlement negotiations, (i.e., documents or information will be produced and protective order remains in effect through mediation, if settlement is not reached, party can seek to lift protective order);"
The focus is on the Markman hearing...
"Markman hearings are important, since the court determines patent infringement cases by the interpretation of claims. A Markman hearing may encourage settlement, since the judge's claim construction finding can indicate a likely outcome for the patent infringement case as a whole. Markman hearings are before a judge, and generally take place before trial."
Greenshift has already stated that several producers were in settlement talks.
No preliminary injunction? If these guys are in settlement talks, what's the need for an injunction?
GREAT ARTICLE ON US BIOFUELS INDUSTRY!
http://www.associatedcontent.com/article/7723718/us_biofuels_industry_consolidating.html?cat=3
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