Thursday, August 11, 2011

Great Article!

"A hearing has been set for Aug. 22 in a patent litigation case. GreenShift Corp. will face its defendants and counterclaimants in the consolidated case in U.S. District Court in the Southern District of Indiana before Judge Larry McKinney."
"Also being sued are ICM Inc., GEA Westfalia Separator Inc., GEA Mechanical and Flottweg Separation Technology Inc. GreenShift has also named Dave Vander Griend, president and CEO of ICM, personally, and is considering infringement suits against additional companies, Kevin Kreisler of GreenShift told EPM."
". . , GreenShift said any feeling that its patents would be declared invalid is misguided. So too, it said, are offers of indemnity. “Such offers irresponsibly imply the ability to pay damages that continue to accrue against infringing plants. These plants are taking a dramatic risk that an indemnitor is able to repay all damages assessed by the court against each infringing plant that has been indemnified.”



If you read this blog - all this news is old news.  But it is great to see this information getting out to the industry as a whole and to see a major ethanol industry news source cover this important news story with some detail.  You cannot look at your major advertisers for signals about what to cover and how to cover it. Oops! Did I write that out loud?


nobody12378 said...

Where does the ICM bravado come from? They are not in a settlement mood it appears. Perhaps that will mellow after the Markman hearing. If not, it is going to be a long time before GERS gets its due. The appeals can take quite a while I am told. If the bravado is not false, what does ICM know that the USPTO, Sunoco, and GPRE doesn't know? This is not a rhetorical question but one rooted in concern over when the "other shoe may drop". We have all assumed that GERS will in the end prevail, hopefully sooner than later. If that doesn't occur it will be time to turn out the lights in Georgia.

Anonymous said...

Incredible insight, what will be the next that you want to share with us? If there is no more gravity we would all drop from this planet?

" We have all assumed that GERS will in the end prevail, hopefully sooner than later. If that doesn't occur it will be time to turn out the lights in Georgia."

Anonymous said...

New owners of NextDiesel. Investors and Interesting.


nobody12378 said...

Helpful analogies are welcome. I presume from your comments that you believe that it is a certainty that GERS will prevail throughout the entire stretch of this litigation and obtain a settlement larger than the cost of the proceedings? You believe that this is as certain as gravitional attraction for objects of mass. Is that correct? Boy, ICM has flushed a lot of money down the toilet! They should have sought your insights and saved every one a lot of money.

Anonymous said...

A1's comments imply that your insight was as insightful as "We are screwed if gravity stops working." Each statement is true, yet something even beyond obvious.

Anonymous said...

I love the statement by Brian Burris, general counsel of ICM, “The [patent office] does not determine the validity of issued patents—federal courts do,”.

ie: Hey USPTO your prosecution of patents is worthless and inadquate!!!

I believe the law states patents are to be presumed valid once issued by the USPTO, right.

Brian must have elephantitis of the nuts

nobody12378 said...

This is not a slam dunk. The following is a communication I received from a patent attorney I know:

"In the context of determining infringement (and not whether the patents themselves are valid) If the court of appeals believes that the trial court got the claim construction incorrect in the Markman hearing, it can reverse the trial court's decision, irrespective of the holding in Microsoft because claim construction issues are decided as a matter of law and are reviewed with no deference to the trial court. So my original point is still something to keep in mind. About 1/3 of claim constructions are reversed at the appellate level, so there is little incentive for clients to settle once they have already absorbed the cost of discovery (which is far and away the largest cost of a litigation) if they have even a belief that the claim construction was wrongly decided.

In other words, the question of whether a party is likely to settle after a Markman hearing goes more to whether that party believes that the Court of Appeals for the Federal Circuit (or the Supreme Court) will reverse the claim construction (because that forms the basis of the finding of infringement), and less about whether the party believes that it can successfully rely on affirmative defenses, such as that the patent is invalid."

We have a long hard road ahead of us. ICM's statements lead me believe that they will avail themselves of all legal avenues despite our recognizing the existence of gravitational attraction of matter.

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