Time Line

I have a few points to make this morning based on my first reading of the new defense filings.  First of all, this new line of infringement defense is interesting in that it does not deny infringement.  It does not deny that the COES patents cover a non-obvious, unique and important patentable idea.  So in a sense the defendants are trying to justify some seven years of infringement based on information discovered less than a year ago. 

It kind of reminds me of a guy who is being prosecuted for beating his wife.  Then later he hears the preacher who married them had an expired license.  "They can't get me for spousal abuse, since she technically wasn't my spouse!"   

All this doesn't explain the moral question that when he hit her - he thought she was beating his wife.  It doesn't explain the fact that regardless whether they were technically married it is still against the law to assault someone. 

But SkunK, this has nothing to do with right and wrong - we are talking about the law! 

True, but thinking the preacher has an expired license is not the same as him having one either.  The fact that an email exchange may have taken place outside the one year deadline does not necessarily indicate that a violation took place.  

In previous filings on the the subject and in the GreenShift filing one week ago we see this in the page 5 foot note:

"CleanTech vehemently denies that the wrongfully withheld documents affect the validity of the patents-in-suit."

Much more on the one year rule HERE.  But let the SkunK throw out a thirty second GreenShift defense.  At least that is the amount of time I spent on Google to conjure this one up.  Maybe a bank of lawyers - our experienced patent lawyers - can come up with more?  Then again, they may not need to.

The one year rule does not cover experiment'ng - and that's what we was doing:

"In 1998 the Supreme Court established a two-part test (Plaff vs Wells) to determine the commencement of the on-sale bar. According to this test 1) there must be an offer for commercial sale -not experimentation-, and 2) the invention must be ready for patenting (i.e. it must be reduced to practice or fully documented so that a person skilled in the art could create a working version of the invention)."

I propose the reason we was experiment'ng with a prototype was because we was not ready for patent'ng.  Anyone who does inventing knows that it take time, lots of time.  10% inspiration and 90% perspiration to borrow a phrase.  We may have been inspired, but only started to perspire when and if any offer to sell equipment was made.  Experimenting would never get past the bench testing stage if inventors were not allowed to offer something to real life Plant Operators.  Inventors cannot be expected to buy their own ethanol plant in order to refine and come up with a patentable idea.  As you can see from the quote above, the law specifically allows for this.

SkunK