GreenShift response to the defendant's request for a Markman clarification.
Its all about “the Substantially Oil-Free Syrup Construction”.
"Defendants wish to apply this term to not only claim 8, but to claims 1, 10, and 16 as well. CleanTech further respectfully submits that the Substantially Oil-Free Syrup Construction should not apply to claims 1, 10 and 16 but also should not apply to claim 8."
SEE HERE
SkunK
One strong Greenshift argument is that - on one hand the court recognizes that the procedure may be repeated to get out more oil, but on the other hand the court also says the oil coming out of the procedure is substantially oil-free? Another good argument is the substantially oil free limitation is not relevant to the ‘858 patent since that term does not appear in the claims. . . or the specification.
Tuesday, November 1, 2011
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7 comments:
To the untrained eye it looks as if both sides are attempting to establish a basis for appeal.If either side is clearly gearing up for an appeal then discussion of possible settlements may not be wise, in this case for GERS. This fact of legal strategy may put a damper on speculations over pending settlements.
http://www.jltp.uiuc.edu/works/Kirklin/index.htm#_Toc285059850
"The federal courts have long struggled to define the role of previous third-party settlements in the determination of damages for patent infringement. Although the use of such evidence is governed by the Federal Rules of Evidence, district and appellate courts have failed to reach consensus regarding the appropriate application of these rules. Most recently, the Federal Circuit noted that the most reliable evidence of damages for infringement may be a license that emerges from a previous settlement. This decision prompted a flurry of new rulings by district courts regarding the admissibility and discoverability of evidence of previous third-party settlements. These new rulings have made matters worse. The decision has resulted in new divides across districts and has even caused disagreement within single districts, including the Eastern District of Texas.
A fresh look at governing evidentiary principles reveals that Rule 408 precludes the admission of settlement-related evidence for the determination of damages. Nevertheless, such evidence is discoverable. This disconnect between the discoverability and admissibility of settlement-related evidence leaves something to be desired — especially when considered together with several features unique to patent litigation. The rise of nonpracticing entities, an increased reliance on expert testimony, and new studies on bench and jury trials suggest that the policy rationales underlying Rule 408 are not as strong as once assumed. In light of these factors and the confusion across the courts, it is important for the Advisory Committee to the Judicial Conference and Congress to reconsider the continued viability of Rule 408 as applied to damages determinations in patent litigation."
"To the untrained eye it looks as if both sides are attempting to establish a basis for appeal."
The quest for a "strong basis for appeal" merely gives both sides the leverage at the "present negotiations" they are looking for.
"Present negotiations?"???? yes present negotiations. whether they are actually at a table who knows. But all this manuevering is all about positioning for strenght and a better deal and that is called "negotiations", whether or not it is done at a negotiation table.
Greenshift will soon have to present a letter of demand. What they will accept as settlement. The defendants will have to reply with what they will accept. It is part of and designed to generate settlements.
With the defendant's case ripped apart at markman, with an inventor's health hanging in the balance, the odds of this going to trial/and or appeal is right between slim and none. This will all seem like ancient history in six months.
If you look at this case overall and not look for a cookie cutter statistic as a guide - this case is going to be settled because both sides have firm, overwelming business presure to settle.
I would love to a settlement and barring that a preliminary injunction. I am not as sanguine as you about the nature of this litigation. Unless KK is going to give away the store, the exposure here is so high for the defendants that there is little additional risk to continuing through appeal. In fact, the likelihood would be high that damages could bankrupt some of the smaller companies. Most of the costs are already been incurred. What do they have additional to lose?
the exposure here is so high for "the defendants"
"the defendants" is the wrong language that leads to the wrong conclusion.
This is MANY defendants. ICM (and the two they imdemnify) may be the ones closest to high exposure.
Watch GreenShift lawyers offer different settlements to different defendants in this upcoming letters of demand. They will peal off one and then another and then the facade will crumble. Divide and conquor. ICM will be left holding the proverbial "bag".
Once they see a way out of this potential door shutter, they will line up with their hats in their hand.
Only ICM and GEA and the plants too deeply controled by both will be left to pay off the GreenShift lawyers.
Vander Griend made all these promises. Now he's running for cover.
"Watch GreenShift lawyers offer different settlements to different defendants in this upcoming letters of demand. They will peal off one and then another and then the facade will crumble. Divide and conquor. ICM will be left holding the proverbial "bag".
"
This is how I see it playing out...at least I hope.
This is what Slash stated on August 12,2011. Emails requesting confirmation to BIOF have gone unanswered. I know better than to try GERS,
"BioFuel Energy Confirms License With Greenshift
Call This Number To Hear The BIOF Confirmation
(866) 281-6782. The access code for the replay is 166976.
Hit the #6 on your phone twice(fast forward five minutes) as soon as the call playback starts and It'll take you right to the Greenshift comment!
They said they're finalizing the installation agreements.
Is that us? I hope they go with our Alfa-Laval equipment of choice.
Good Luck To All! "
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