Tuesday, August 16, 2011

Prevost 20040087808

The SkunK has often wondered what is the heart of the defendant's case about prior art.  What "thing" do they point to that shows the GreenShift patents are obvious and therefore invalid?  In their last filing they finally showed their hole card.  My question?  Is it an Ace or a deuce?

After reading their filing it appears to me, without a doubt, that they have bet their farm (businesses?) on Prevost Application 20040087808.   Here are their quotes - twice calling it "MOST IMPORTANT":

"Most important,* construction of the ‘858 patent will expose Plaintiffs’ failure to explain how the ‘858 patent claims differentiate from the clear teaching of Prevost U.S. Patent Application Publication No.US2004/0087808 (“Prevost”) to obtain oil from concentrated thin stillage by centrifugation." [p. 2]

"Most important* the claim construction analysis that Plaintiffs have dodged, both publicly and before this Court, will require Plaintiffs to explain to this Court how the methods for corn oil recovery claimed in the ‘858 patent can be as broad as Plaintiffs’ rhetoric asserts when the exact same method is completely and identically* disclosed in one prior art reference, namely, Prevost. A substantive evaluation and resolution of the ‘858 patent claims, in view of an express disclosure in Prevost to recover oil from concentrated thin stillage using a centrifuge, is long overdue." [p. 4-5]

Now the SkunK, having had a spam job offer just today to be a Patent Attorney, might give you some reasons why he thinks this is a weak defendant position.  Instead I will cite the GreenShift argument to this EXACT point. 

The argument the defendants say they are anxiously waiting for was already made by GreenShift - in detail - back in April of 2010.  Now if the Skunk, unshaven and half-in-the bag, can find this prior argument from a year and a half ago, that the defendants appear unaware of, don't they think a sober, well groomed, good looking judge could find it as well?  How they gonna explain that?  Good Golly!

Here is a small portion of the GreenShift argument:

"Cardinal's obviousness argument is premised heavily on the Prevost reference, which was the primary reference at issue during the prosecution of the '858 patent. As was discussed at length during the prosecution, Prevost discloses performing an oil removal step by introducing thin stillage into a centrifuge before it has been evaporated/concentrated, whereas after evaporation/concentration, Prevost discloses solvent extraction as the oil removal process. (Ex. M, pp. 100 & 130). Cardinal describes two other references (i.e. US 5,250,182, Cardinal Ex. U and the South Dakota State University reference, Cardinal Ex. T), each of which discloses the solids concentration of thin stillage (before it has been evaporated or concentrated) to be up to 15% by weight and anywhere from 5-10%, respectively. (Opposition, p. 17). Using the solids concentrations, Cardinal then calculates the moisture content of the disclosed thin stillage to be "as low as 85 % by weight" and "between 90-95% moisture by weight," respectively. (Id.) Cobbling these references together, Cardinal then posits3 that it would have been obvious to one skilled in the art to combine Prevost with either the '182 patent or the South Dakota State University reference and thus introduce the thin stillage (before it has evaporated or concentrated, and with a high enough solids content to place the moisture content within the range of greater than 30% by weight and less than 90%) into a centrifuge for oil extraction. (Id.)" [p.8]


Now how can the defendants argue that Prevost is the "exact same method"????? The Patent office did not skip over it - it was the "primary reference at issue".  It uses solvent extraction for heavens sake!!! *  The Prevost method also goes to a centrifuge before* it is evaporated/concentrated.
b. 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).  [p.9]

*I just cannot believe the defendants ARE betting the farm on Prevost?


Anonymous said...

Another GREAT blog. Thanks Skunk.

Anonymous said...

I just reviewed the background data prior to reading this and came up with the same conclusion. I also have apples on this cart and want to make sure they get to market.

The only issue I notice is Prevost mentions the "preferred" method to separate corn oil "prior to syrup" concentration" is Centrifugation and the "preferred" method "after concentration" is solvent extraction.

Ergo I do not believe Prevost is teaching Centrifugation "after syrup concentration" at all as there is no mention of the possibility of Centrifugation as a possibility.

The real question here is what the definition of "is" is. It seems I have seen this argument in court before.

Anonymous said...

If I remember that "is" was 19 years old and they worked pretty hard together.

Anyway I cannot believe they would leak someones medical condition out in a so called legal brief. I would not be surprised to see the judge sanction them.

Imagine if you had access to someones medical condition at work and leaked it to others to slander them. Say she had an STD and you worked in medical. You would get sued, lose your job and never work in a personnel department again!! How could the judge allow this unprofessional behavior to slide in a public document.

It sounds like the Dave the CEO of ICM dictated this brief, not an officer of the court. Wickedly unbelievable.

Anonymous said...

The medical condition comment is illegal in itself. Not surprising coming from this band of thugs.

Ethanol Operator #9 said...

The truth is, ICM is out of cash and can no longer afford this.

Anonymous said...

(#9 I think you are right although I would love to know how you came to that conclusion)

This is what ICM also said in the brief:

"Potential for investments in, loan availability to, and sale of all assets of the Defendants have been affected by this lawsuit, and by Plaintiffs’ publicity tactics."

That pretty much admits GreenShift has won the court of the market place. They listened to both sides and are going to greenShift big time.

Anonymous said...

What/where is the reference to a medical condition? TIA

Anonymous said...

footnote 2 on page three


Yesterdays blog has the defendant's response

Skribe said...

Deuce. So even if you Skunk can see the defendants case is lost then even they should know when to make the logical choice to throw in the towel and settle. Why continue and risk it all, when they can still settle, take the hit, but live to continue doing business, but in the legal way.
Admit guilt, pay the fine, get back to work the legal way and move on. Yet if they want to keep pushing the case as the liabilities continue to amass and risk it all? An illogical choice for Dave V, ICM, etc... Looks to me like the pressure is on and they will settle.

nobody12378 said...

I think that KK wants blood, an unconditional surrender. Therefore, since the defendants have similar risks either way why not fight it out all the way through the appeal process? The greatest cost of these proceedings, discovery, is behind them. They have nothing to lose under the blood lust scenario. The only ones that lose as a result of KK's blood lust are the common shareholders. If there was a real governance structure in place looking out for us, a reasonable settlement would be offered that facilitated a quick infusion of cash into GERS. That would result in elimination of the toxic debt, expansion of marketing and perhaps even a small dividend for the commons. What do you think would happen to the PPS then? No, KK may chose to pay his bills through more dilution after the R/S.

Anonymous said...

How do you explain Central then. They moved toward the light and were greeted with open arms and are now valued customers. Kreisler is limited by creditors, the inventors, law concerning shareholder interest and now even the legal team that is working on a percentage of the winnings. I think his emotions are well tamed.

I think ICM is the one behind this stubborn failure to settle. They are privately owned and run with an iron fist by one man and has no reporting or governace requirements. He is literaly leveraged himself in a position to take down an entire portion of the ethanol industry with his own company.

nobody12378 said...

Hope you are right; that KK will be statesman-like in his approach. Some of his public and legal positions say otherwise. The fact is ICM could drag this thing out for a long time and that is NOT in our interest. A statesman sitting in the "King's Chair" (position of strength) would find a way to allow them to save face, not be destroyed financially and to capture a significant and needed cash infusion for GERS. Live supportive clients in the short run are better than a vanquished empire in the long run. That said, none of us are sitting in the "King's Chair" and are not facile with all the details. But the concept is germane.

BillV said...

I don't think ICM can afford to stop now. If they lose in the lawsuit they are out of business, and if they settle they are out of business. The only hope they have is to cling to the hope that a judge makes the wrong call.

Anonymous said...

Oh it's in our interests all right. 3 times royaltys adds up quick. Stupidity on ICM's part. They're hurting the industry and this strategy is backfiring thus damaging their reputation. More the better for gers.

Skribe said...

I believe they can settle now then continue business in the legal manner. Only a complete fool would play a game of all or nothing. The breaking point will come and a decision will be made. Only a fool would continue a losing battle with the liabilities continuing to rise. I believe Dave V is personally being sued. He will know when to make the right choice. Although he should have known from the beginning. He must have thought they would not have gotten the patent. What a risk.

Skribe said...

Only two ways it can go. Contemplate the reasons and outcome of both directions.

Skribe said...

I agree with this Nobody
" A statesman sitting in the "King's Chair" (position of strength) would find a way to allow them to save face, not be destroyed financially and to capture a significant and needed cash infusion for GERS. Live supportive clients in the short run are better than a vanquished empire in the long run"

Anonymous said...

It is odd that ICM would be protecting the Ethanol Industry for minimal return. ICM is accustommed to building 100 million dollar ethanol plants and receiving a good return. Now ICM is battling to sell 3 million dollar COES for minimal return and indemnifying the ethanol plants from liability.

It makes you wonder what is driving ICM to litigate this issue. Especially when ICM does not have to pay the royalties other than the plants they have an interest in. So it must have territorial implications or just big gonads and chest beating.

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