Monday, October 3, 2011

Prevost Argument Fails, Defense to Follow?

As recent filings say in no uncertain terms, the Court rejects the defendants' argument about Prevost. At various points in the filing the court uses these words to describe the defendant's position on Prevost: "completely without support";  "disagrees with Defendants’ characterization";  "nothing . . . indicates that Defendants’ presumption is correct.".  Here is the blog where I discuss it more and here is the Markman filing these statements are in.

How important is Prevost?  It is the key to the defendants case.  Who says?  The Defendants.  At least they said that before the Prevost Argument failed before the court.

You can find how important that Prevost - - -  is - - - was - - - to the defense in this filing.

Some of you might be saying:  SkunK lets move on, you proved your point in other posts already.  Well my reply is that this is just too important.  This is the center of the defendants' case and it just got shot down.  It is very important that the Ethanol Industry understand what ICM's position has been and what the Court said.  There have been too many Plant Managers leading their Boards of Directors to the ICM position based on the false promise of Prevost.  Some of these decision makers have prior ties to ICM.  The many stakeholders involved at these plants clutching on to Prevost need to know NOW how the court feels about that position.

These leading ethanol industry stakeholders have acted based on Prevost.  Now that Prevost is sunk will they change their act?  From the beginning they considered ICM's position correct and considered this SkunK blog the home of a biased wing nut.  OK, so I'll concede the second point, but lets see what the court thinks about ICM's position.  After all, the court's position is the only one that really matters - isn't it? 

ICM's Assertion:
"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."

Court's Answer:
"Therefore, to distinguish itself from Prevost, Plaintiff clearly disclaimed that the heating that occurs as
part of the oil recovery step occurred at any time prior to or as a part of the evaporation or concentrating step."
ICM's assertion:
"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."

Court's Answer:
"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."
Does this statement hedge or beat around the bush?
"The Court disagrees with Defendants’ characterization of the ‘858 patent’s prosecution history."

Some more FREE ADVICE from the court to the Ethanol Industry:
"Defendants also cite Applicants’ statements regarding evaporation freeing some of the bound oil and how Minowa in combination with Prevost fail to teach or suggest “recovering the oil from the concentrated byproduct by heating and mechanically processing the concentrated byproduct to separate the oil from the concentrated byproduct.” Neither of these statements reference the recovery of oil free from water and solids. Indeed, Defendants state that they “presume” that is what Applicants were referencing. However nothing in the context of the prosecution history indicates that Defendants’ presumption is correct. Defendants’ assumptions regarding the grounds on which Applicants distinguished from Prevost are completely without support in the record of the prosecution history."

AND FINALLY even I got the hint here on how this is gonna turn out.  Is the judge saying here that only ". . . the well established principles of claim construction . . ." keep him from making a ruling right NOW?  How do you think the court will rule?  (If you still got any doubt - set down those ICM Press Releases and reread what the court just said.)

"Although the Court acknowledges that patent claims are generally construed so as to sustain their validity, the Court will not abandon the well established principles of claim construction in order to address a validity issue that is not currently before it."
Quotes above are from here.
ICM's Defense taken from Filing HERE
Court's position taken from Marksman Here

just the way I read it,


Anonymous said...


After this is over, you will be well qualified to pass the bar on patent lawyer'ng. And then you may afford to be a starving lawyer.

Best Regards,

nobody12378 said...

Maybe I am too impatient. But, the kind of news that was delivered Friday which, for the most part, eviscerated ICM's position has not seen an inkling of a positive market response. I suspect that another company with such newly minted clarity for the value of its intellectual property would have seen a nice bump in its PPS. I know that we are a long way from collecting the benefits of this ruling, but doesn't the market price take into consideration future value?

What is it? The checkered history of the company, the toxic debt, the unknown parameters and outcome of the R/S, the lack of true corporate governance, the poor state of the balance sheet, or the lack of sustained positive SEC filings are all candidates as reasons. If not these, what are we missing? Why is it that almost every one else is ignoring this golden goose? What do they see that we do not, what do they know that we fail to see or believe? It is disconcerting.

Anonymous said...

Darth Vander Slime has egg all over his face. He's cleary lost this fight. What a fool. Settle already. Stop holding the industry hostage. You made a mistake. Suck it up and take it like a man.

Anonymous said...

I guess the patent office got it right after all. In light of this new court ruling, will an injunction even be needed or will they just settle?

ICM needs to explain how their failed hopes in prevost avoid infringement.

Anonymous said...

No news may be good news here. i imagine there is a lot of puckering up and fingure pointing going on right now. Consider over 15 litigant's with lawyers each blaming the other. Of course there was a combined and concerted front at the beginning to rise together. Or maybe now figure out how not to descend into oblivion together.

Each litigant will now look to their individual best interest and maybe at the expense of the others in bond. Treason will occur followed by realization and separation of the parties involved in fraud.

Time will be interesting from here as this unfolds. Let us wait for the 10-Q to visualize a part of the future. I think that is the main hold-up now.

Slashnuts said...

Very Well Done Skunk!

If they're as confident in AOS as they were Prevost, then Valero will be a Greenshift customer soon.

I noticed this update on Zeropoint. Sounds like it's all up and running and they're still expanding as planned.

"Biomass Gasifier Fuels Electricity Generation, Sells Renewable Power to Grid
ZeroPoint Clean Tech, Inc. announced the completion of phase one commissioning for the ZeroPoint Renewable CHP Solution™ at a project site in Schwarze Pumpe, Germany. The project team has successfully integrated the biomass gasifier with the gas engine, synchronized the generator with local distribution grid, generated power on to the grid to secure a 20-year power purchase price and performed engine emissions testing to confirm environmental compliance. The project will expand with additional ZeroPoint biomass gasifiers and third party reciprocating engines.

The ZeroPoint Renewable CHP Solution™ features high process efficiency, low capital cost, real time gas analysis and fully automated controls in modular, containerized packages for plug-and-play deployments worldwide. The ZeroPoint Solution produces renewable synthesis gas suitable for reciprocating engines, steam boilers, thermal applications or for co-firing with other gases, coal, oil, or biomass. ZeroPoint technology is suitable for CHP plants ranging from 2-20 MWe. In additional to producing high-quality syngas, the ZeroPoint solution yields biochar as a co-product to create a carbon negative process. Biochar is a highly stable form of sequestered carbon with valuable agricultural and industrial uses.

ZeroPoint congratulates its partner, Blue Planet Sustainable Energy, N.V. on the successful project development that included, among other achievements, completion of the rigorous Technical Inspection Association (TÜV) approval process for the gasifier, gas engine and balance of plant at the project site."

Good Luck To All!$!$!$!$!$

Neil said...

Just bouncing around here:
Zeropoint - sounds good, but I wish "Blue Planet Sustainable" had used Capstone Turbine rather than recips - much cleaner, more reliable and much much, lower maintenance.

Nobody - there was impact if Friday's news in the huge increase in trading on Friday, which seems to have settled back down to virtually nothing. In truth I think all the factors you cite still weigh on the stock. However, this ruling is another major step along towards breakout. The next 10Q will be another, with what is, I hope, healthy profit and cash flow. From then on I think the momentum will begin to become unstoppable.

nobody12378 said...


I know the volume picked up for one day, but without any movement in the PPS. Now we see that the 0.0001 bucket has been filled again by the MMs and the volume is almost nothing. This is what I was referring to when I stated that there had been no market response. In retrospect over the last two days the increase in the number of shares available at 0.0001 is a negative market response.

Anonymous said...

I have been reading and re-reading this phrase:
"Although the Court acknowledges that patent claims are generally construed so as to sustain their validity, the Court will not abandon the well established principles of claim construction in order to address a validity issue that is not currently before it."
Ive gone back to the ruling to get the context, gone to the defendents claim contruction to understand what was being addressed so that I can try to understand what the he** the judge was getting at. Im starting to wonder, in particular, by looking at defendents claim construction if they were not using this process to start building a case for the validity of the AOS system. The context for this comment by the judge was the discussion of futher processing and whether GERS acknowledged in their claim there was still oil to be recovered after first round of processing. Maybe the judge called them out for trying to establish validity of a patent claim (ICMs) that was not currently the issue at hand? just thinking out loud.-Ollie

Slashnuts said...

"Further, ICM continues to believe that under a proper interpretation of the patents' claims, the Tricanter® Oil Separation System does not infringe GreenShift's patents."

Now that the courts have denied ICM's interpretation of the claims, they are clearly violating the patents. ICM owes Greenshift back pay for every gallon of oil they've extracted over a period of many years. That's a big fat check coming our way.

Anonymous said...

Ollie, I respectfully disagree.

"to address a validity issue" I believe cannot be the AOS since it is not a valid patent that can be challenged. It is pending and has not even been published so they cannot be arguring that now. If may go through many changes in the patent process before it even gets near the end.

ICM has constantly , however made the validitity argument using Prevost against GERS. During the construction briefs on the markman they constantly let that argument come in even though it has nothing to do with claim constrution.

I think the judge answered their points and tore down their arguments and then acknowledged this was not the place to declare the greenshift patent valid. However he left no debate on how he will eventually rule. He doe'snt want to waste anymore of the court's time on this.

Saying the defense argument using prevost is "completely without support" kind of wraps it up

Anonymous said...

Yes I like this interpretation, same as skunk's, much better than mine. I just prefer when the judge leaves nothing to the imagination (or someone like me will over-analyze). ollie

Anonymous said...

If we need something to worry about, might I suggest them trying to impeach the inventors. Since this is all they have left I expect them to come after them with baseball bats. ICM had nothing to lose since they pushed all in and their lawyers have already shown they will take on the personallity and methods of the guy who writes their checks.

Anonymous said...

ahhh, baseball bats is a metaphor.

I hope

Anonymous said...

Yes we do still have that matter to close out. We are expecting briefs to be filed within the next few days by GS Cleantech and then defendents about a week later (something like that). Hopefully, GERS legal team crushes this attempt to discredit or whatever it is.Ollie.

Anonymous said...

That's crazy. The prevost failed? Wasn't that Icm's knight in shining armor? Seriously. They hid behind prevost all this time and it was nothing??? just smoke and mirrors??? Those what happens now?

Anonymous said...

Something needs to happen here. If I steal a car or a few hundred bux I go to jail with a felony. This Vander whatever guy steals millions and continues to. What gives? Is there jail time for this sucker or what?

Anonymous said...

Back in the day they would a hung the creep. how many patent stealers would there be if they hung in public square? Ok maybe cap punishment is extreme but think of all the pain an suffering this creep has caused

Anonymous said...

10-Q will provide many answers. Watch for early release. Also, does anyone know the financial stability of ICM. Could ICM even cover holding defendants harmless in even a compromise loss? Surely the companys in cahoots with ICM are asking his question.

Vineyardstock said...

What may be going on right now...

1) GERS negotiating with the duped ethanol companies, signing them all to licenses. With the caveat that if they sign, GERS will not persue any further damages from them.

2) As for ICM, working directly with their lawyers. As ICM realizes they will be seen (through their contract language and bold statements via press releases) as the main target of damages owed to GERS (via an injunction surely to come or via a longer trial process). Therefore, ICM either negotiates a reasonable settlement directly with GERS, or they gamble and take the litigation process further thus possibly risking their companys' existence. As they mercy of a legal system that has already declared their main defense (Prevost) baseless.

Anonymous said...

Seems like inorder for GERS to be made whole and prosper ICM will suffer a GERS type fate....Seems fair

Anonymous said...

Could it be that GERS was so confident in the patents that they predicted the infringer settlement as the mystery licenses?

nobody12378 said...

You ask a good question, how is GERS going to get the number of gallons under license that they predicted now that Valero has gone with ICM? I have to assume that KK knew Valero was not in the equation when that forecast was provided. No one has been talking about ADM. Could the signing of ADM bring closure on this estimate?

Anonymous said...


From the Greenshift website:

"Over 20% of the industry is currently using our patented and patent-pending extraction technologies."

this implies to me that we've acheived our goal for 2011. I believe we were about 9% penetration at end of 2010 with a promised additional 9.6% for 2011(based on the 2011 shareholder letter).

nobody12378 said...


I think the question focuses on the denominator. Is it 20% of the GALLONS or 20% of the PLANTS?

Anonymous said...

What I was getting at is that its my opinion that the mystery licenses that anonymous was questioning is not attributed to infringers under litigation that GERS is confident would settle. If the additional industry penetration were due to settlements I think?? we'd have been made aware. So, why have they not been announced is an interesting question. Slash thinks it could be Valero.

As for the question of plants or gallons, I assume they're talking gallons when GERS uses the phrase "20% of the industry..."

nobody12378 said...

It is not Valero. A senior Valero VP has stated so in writing. Slash just won't give that up because he cannot figure out how GERS can make the 20% pledge without Valero. That has been the genesis of this entire line of discussion.

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