Friday, September 30, 2011


The defendants' argument about the GreenShift patents being invalid is centered squarely on Prevost. If appears that the Court found that key argument lacking.  Or as the SkunK might say - the defendants used Prevost as a crutch and were hit repeatedly over the head with it.  Here are some quotes concerning Prevost:

"Prevost was one of the main pieces of prior art cited against the ‘858 patent during prosecution."

"Indeed, Applicants do distinguish their claimed methods from Prevost, but they do so explicitly on the grounds that their claimed method teaches a post-evaporation process for recovering oil from the concentrate using heat and mechanical processing."

"However nothing in the context of the prosecution history indicates that Defendants’ presumption is correct."

"The Court disagrees with Defendants’ characterization of the ‘858 patent’s
prosecution history."
"Defendants’ assumptions regarding the grounds on which Applicants distinguished from Prevost are completely without support in the record of the prosecution history."
Yes, these quotes are out of context.  Go ahead and read them in context.  These statements are unequivocal and bold and seem to show which way the judge is leaning.  How can you read this and not get an idea which way the judge is headed when it comes to invalidating the patents due to Prevost or any prior art? 

Sure, I don't get the hint when Mrs. SkunK meets me at the door with a bag of garbage in her hands.  I push by and ask her how her day went.  How was I to know what she wanted?  But good golly molly!  Even I can take the hint here!  The threatened Prevost prior art ICEBERG now seems no more than a cube of ice in a glass at happy hour!   


Anonymous said...

looks to me like methods 1's point of intercept was adversely defined

Skribe said...

And I'll have a drink to that!

Anonymous said...

Thanks for sharing your thoughts Skunk. Helpful and entertaining. Poor hope she knows how much we appreciate your help.

Anonymous said...

Mrs skunk is gonna be so rich she's gonna hire some one to take out the garbage while your sipping on mojitos

nobody12378 said...

An intellectual property attorney's take:

"I think it's generally good. I would be concerned about the court's finding that concentrate is a syrup. While I don't necessarily understand the invention, a syrup has certain physical properties, and my guess is that defendants will try to argue that either a) the claimed invention does not create a syrup as understood by one skilled in the art or b) that defendant's process does not create a syrup under a similar rationale.

Also, be aware that cases going up on appeal construe claims differently about 35% of the time. If it really is defendants legal strategy to stonewall your company, if they are on the losing end, I believe they will appeal the claim construction as a matter of course to drag out the litigation in the hopes that the Federal Circuit will disagree with the claim construction and either reverse the district court's decision or remand for a new trial based on this new reading of the claims. In short, good news should be tempered with the understanding that this will invariably be a long process and even a finding of infringement at the end of the day is really only the beginning of the legal process."

Anonymous said...

If the 10-Q looks good, doews it matter if the litigation continues?

Anonymous said...

isn't it true that markman rulings cannot be appealed interlocutorily (pre-trial? One reason given is fed circuits dockets would be swamped and also the federal circuit needs the full trial record to decide markman issues. Im not a lawyer, this is just what i find from google searches.--Ollie

Skribe said...

"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. A Markman hearing may occur before the close of discovery, along with a motion for preliminary injunction, or at the end of discovery, in relation to a motion for summary judgment. A Markman hearing may also be held after the trial begins, but before jury selection."

From Wikipedia.

Since Prevost is not working and it was their best effort to try to invalidate, perhaps the Markman hearing will encourage them to settle since they have no real chance to win, why proceed? Since infringement is very obvious and they even admit to using methods that are covered by the patents, their goal was to try to invalidate, now that has also been shut down with the Judges negativity on Prevost. So what's left to continue on? Was the Markman enough to encourage settlement. Infringement obvious and even admitted, Attempt to invalidate shut down. No future for defendants, they have lost.

My opinion.

Skribe said...

Like this is not really about trying to prove they are infringing, because that is obvious and even admitted by the defendants. I think it is more about trying to invalidate the patents, which is now lost with the Judge cutting down their main piece of ammo Prevost.
So the result of the Markman hearing has revealed that their attempt to invalidate has failed with Prevost.
They cannot invalidate the patents and are infringing.
They have lost. There is no point of continuing. They should settle now and correct their business practices and their public images.

My opinion!

Skribe said...

Like what will they continue on for? To try to prove they are not infringing the patents?
Or to try to invalidate the patents with Prevost?
They have no chance to win now and the longer they wait to settle the higher their bill gets, so it would only make sense to settle now. The Markman hearing was pivotal because of it answered the Prevost issue and was overall a GreenShift victory. Their final goal was to attempt invalidation with Prevost and that has been lost at the Markman hearing. It took the USPTO years before issuing those patents, they will not be invalidated.

nobody12378 said...


There is a significant distinction between infringement of a patent and the validity of the patent.

Skribe said...

Good I'm glad you understand that.

Free Blog CounterTamron