Order

News is coming fast now.  Here is a schedule with a warning.

"The court notes the parties' agreement to produce to one another copies of all documents obtained from non-parties and assumes that any variance from this agreement will be based on subsequent agreement of counsel or by protective
order."

I think this is a reference to the defendants' questioning of one of the inventors.  The defendants' ambush APPARENTLY made an impression on the judge.

This is how the SkunK strings the beads we know together:

ICM declared in a Press Release they had information they had not showed the court.  It appears they were saving it to spring it on the inventor during disposition.  They did.  The inventor's lawyer told him not to answer any questions since the defendants apparently had not fulfilled their duty to share information during discovery.  The defendants' were hoping for some kind of Perry Mason moment.  Having failed that, the defendants complained to the judge who had now publicly reminded them of their duty to share.

These upcoming briefs will be fascinating - you can then see if I beaded together a necklace or a knapsack of wet goat hair.
SkunK

Prevost

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!   
 
SkunK

Markman is out!

see here

The SkunK sees 3.7 win for GreenShift out of a possible 4. 

The Court agrees with Defendants that the claim language itself suggests that the Concentrate Terms refer to the substance that results from the concentration or evaporation process.

Contrary to Plaintiff’s argument, this construction does not foreclose the possibility that Plaintiff’s claimed invention can be practiced continuously.

Court interprets the Concentrate Terms as meaning “syrup containing water, oil, and solids resulting from the concentrating or evaporating process.”

**********************

Therefore, the Court agrees with Plaintiff that “mechanically processing” means “to subject to a mechanical device (or devices) to effect a particular result.”

**********************

Therefore, the Court construes the language in claims 1, 10 and 16 as: “the Concentrate Term (as construed by the Court in this Order) subjected to heat and a mechanical device (or devices) to extract a product that is substantially oil from the Concentrate Term (as construed by the Court in this Order).”

**********************

  Accordingly, the Court concludes that “centrifuging the concentrate to recover oil” means: “processing the concentrate (as defined by the Court in this Order) with a centrifuge to separate the oil from the concentrate so that the oil stream coming out of the centrifuge is substantially oil and the remaining concentrate stream coming out of the centrifuge is substantially free of oil.”

*****************
I am on the road and so I am using Ollie77's link off his I-Hub post.  Thanks Ollie77.  Consensus seems to be it looks good.  Will write some thoughts soon.

SkunK

New Filing on Discovery

See Here

SkunK

The number one thing on the GreenShift agenda is to discuss: 

1) The propriety of Defendants’ failure to produce discoverable documents obtained from third parties prior to the deposition of Mr. Cantrell.
*******************
It appears to the SkunK that the General Counsel of ICM was aware of holding back information from the court - and that it was simply part of the ICM plan.

Here is an ICM statement from a PR in August:  "There is substantial evidence not before the USPTO and not yet presented to the federal courts that impacts the validity of the GreenShift patents."

The Skunk's first reaction when he read the statement above was:  "Your holding back evidence during discovery and you are announcing it to the world in a press release?"  Maybe that is common?  It seems a bit unusual to me?  But then again I am not a lawyer.

Highly Engaged Stocks

SEE HERE

SkunK

Pacer "improved" their format, of course it is making things a bit harder.  However I just came from their site - nothing new to report on the litigation front. . .

The Next COES Patent & Stuff

Easy enough to report a new patent.  All that takes is keeping a determined eye on the public patent portal.   It is indisputable GreenShift is presently setting on four COES patents.  As an investor the question is: "What next?" 

The SkunK's guess that this 5th COES patent below will be issued to GreenShift sometime in the next 3-12 months.  It appears that a few claims are very close to being allowed while other claims still being worked through the strenuous process.

METHOD AND SYSTEMS FOR ENHANCING OIL RECOVERY FROM ETHANOL PRODUCTION BYPRODUCTS ***************************  I see some questions about the GreenShift lawyer team in the comment section. Here is a nice summary of their place in the Industry. Although I doubt the exact terms of their financial relationship will be disclosed, (If the Law Firms allowed it to be public record, how could they negotiate over terms with a new client?) I believe that it has been mostly fee based up until less than a year ago when it became mostly contingency based. {I'm thinking old seasoned experienced NFL player on base salary with huge performance bonus.} ************************ SkunK Bonus ************************ Here are a couple things from a recent GPRE Presentation:

GreenShift Files Motion to Amend Complaints

Latest ICM Attempts to Circumvent GreenShift’s Patented Extraction Processes Fail to Avoid Infringement

Earlier this year, ICM announced the filing of its own patent application for its so-called advanced oil system, a process which ICM alleges “does not separate oil directly from concentrated thin stillage” and therefore does not infringe GreenShift’s patents.

“ICM’s attempt to design around GreenShift’s corn oil extraction patents continues to include concentration and recovery of oil from thin stillage with a centrifuge – a process that is covered by our issued patents,” said Kevin Kreisler, GreenShift’s Chief Executive Officer.

The following is a current list of the defendants in GreenShift's pending infringement action:

David Vander Griend, personally
ICM, Inc.
GEA Mechanical Equipment US, Inc. (f/k/a GEA Westfalia Separator, Inc.)
Flottweg Separation Technology, Inc.
ACE Ethanol, LLC
Adkins Energy, LLC
Al-Corn Clean Fuel, LLC
Amaizing Energy, LLC
Big River Resources Galva, LLC
Big River Resources West Burlington, LLC
Blue Flint Ethanol, LLC
Bushmills Ethanol, Inc.
Cardinal Ethanol, LLC
Chippewa Valley Ethanol Co., LLLP
Heartland Corn Products, LLC
Iroquois BioEnergy Company, LLC
Lincolnland Agri-Energy, LLC
Lincolnway Energy, LLC
United Wisconsin Grain Producers, LLC

SEE ALL HERE

SkunK

More Reading, More Filings

IROQUOIS Reply

ICM Proposed Order

ICM Brief

ICM 3rd Amended Complaint

ICM Motion to Dismiss

SkunK

Adkins Opposition

Adkins files Friday to oppose GreenShift adding new patent to the charges.
See Here
SkunK

Timing

Now before anyone gets excited about ICM holding a signed contract, and that having something to do with the Markman hearing (too late); lets go back to July 2011 and the FEW conference.  ICM announced that they had 4 signed contracts to use their AOS. SEE HERE  Well, now it looks like we found out that the four units are going to Valero. 

This is a deal that has been going on for some time and is now being announced by the buyer.  In my opinion it has nothing to do with the Markman Hearing since it was signed back in July.  The Markman took place in August.  Something that took place in August cannot have caused something that took place in July.  Now that the buyer announced and has given tacit permission to disclose, expect ICM to put out a third PR on this single event next week.

If you read the information on the AOS it is not a base extraction system in the normal sense.  It is a system that appears to use a chemical additive to break down the emulsion and get a higher yield on the fringe.  This is normally after a base extraction system has already had a shot at it.  SEE HERE This appears an attempt to not compete directly with the GreenShift COES, and is certainly an attempt to NOT infringe the GreenShift patents.  This is obvious in the ICM PRs where they state:

"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." Burris also reiterated that "ICM's new Advanced Oil System™ design and method clearly fall outside all patent claims of GreenShift Corporation's patents under any construction."

So it seems to the SkunK that this AOS system is an obvious attempt to skittle around the pioneering GreenShift patents.  No, I do not share ICM's opinion.  Yes, I do want to understand their position so that I can anticipate their future strategy.


Skunk

Valero to use ICM AOS

Valero Renewable Fuels Company LLC, a subsidiary of Valero Energy Corporation, announced today its plan to install an ICM-patent pending, next-generation Advanced Oil System™ (AOS™) corn oil extraction system at four of its ethanol plants in the Midwest by the end of the first quarter of 2012.
see here
********************
Valero investing in extraction system at ethanol plants

Valero Renewable Fuels Company LLC, a subsidiary of San Antonio-based Valero Energy Corp. Valero Energy Corp,

The investment will enable the plants — in Albert City, Charles City, Fort Dodge and Hartley, Iowa — to recover more than a half-pound of oil per bushel of corn. The installation gives the plants an additional revenue source besides ethanol and distillers’ grains. Financial terms were not disclosed.

Following the rollout, set for completion early next year, Valero Renewables will consider installing the equipment at another five of its ethanol plants.
see here

SkunK

Particularly Profitable

Corn oil extraction has proven to be a particularly profitable diversification technique for the company. All of GPRE’s plants are now producing corn oil by extracting it from the distillers grains. “You’re taking something that’s worth about 9 cents a pound and converting it to something that’s worth around 36 cents a pound net, so you’re turning a low-value feed product into something that’s a high-value energy product,” Becker said. “We’ve deployed this technology at all nine of our plants at a cost of $20 to $22 million and we’re going to generate somewhere between $30 and $40 million of operating income from these investments in the next 12 months.” Becker expects corn oil production to remain profitable through the next several years, pointing out that if every ethanol plant in the U.S. were to add corn oil extraction technology to their operations only about 250 million gallons of oil would be produced. “That’s not very much product for all the value that we’re able to generate for our shareholders,” he added.  SEE ENTIRE ARTICLE HERE

SkunK

And it helps to have the right technology provider . . .

PS.  At just 20% market penetration of that conservative 250mmgy estimate (for the industry by Mr. Becker above), (20% penetration is approximate GERS goal for end of year), at about 70 cents per gallon - that is $35M in revenues.  Take out $10M in administrative and other costs and we are left with $25M in earnings.   At a ten times revenue earnings (P/E ratio) we have a $250M market cap.  Divide that by post r/s 14M shares? that is a pps of over $17/share.  Pipe dream?  Perhaps.  If it is wrong,  then either my numbers or my calculations are wrong.   I will be the first to admit my past future price calculations have not been spot on by any means.  What if my numbers are off by 50%?  Is that $8/share?  Guess we will only know for sure in a year looking back.

SkunK-ism on life in general?  "The future is what makes the present so interesting."

Markman

See Filing Here

SkunK

GPRE Stock Buyback

". . . repurchase 3.5 million shares of its common stock from NTR plc, its largest shareholder, at a price of $8.00 per share."
SEE HERE

It trades around $9.50, has about a 350M market cap and is presently GreenShift's largest customer.
SkunK

GERS Bonus Link

GreenShift Filing

See Here Doc. 158

See Here Doc. 159

I think the two docs are the same, but they were both posted with different document numbers so I posted both.

SkunK

GPRE Corn Oil

See Article HERE

SkunK

Thanks to Slash for the lead in the previous comments.  Last picture of a group of six.

Get Big or Get Out!

Paul Harrison, President of the Western Wisconsin Energy (WWE), recently announced it has retained Ascendant Partners to assist with the exploration of selling the ethanol plant located between the municipalities of Boyceville and Wheeler.

See Here

Western Wisconsin is a dry mill ethanol plant with a nameplate capacity of 55 MMgy but consistently performs at 57 MMgy, according to the company’s website. Besides ethanol, the facility produces 175 thousand tons of distillers grains and 7.2 million pounds of industrial corn oil yearly.
and HERE

SkunK

Like farming (over my entire lifetime), now it seems the Ethanol Business has matured so that you have to get bigger or get out.  These farmer owned, independent, one plant models that built the industry seem to be going away.

Mo' Filings

WI Grain

Bushmill

SkunK

"House Hunters" travels to Kansas?

We all like to occasionally watch those real estate shows that put buyers into interesting domestic and international markets . . .

Did you know a person is commonly legally identified by his name and last know residence?  Yes, people can have the exact same name, but seldom do those people live in the same house.  We had such an instance where a key player's home address was used to identify that individual in the ICM filing in the previous blog.

With that address in hand - it is amaizing how much information can be gleamed from public records.  Here is what $565,000 could have bought you last spring in Wichita KS.  Built in 2008, five bedrooms, 3.5 baths and over 4100 square feet.  Truth be told, 13x15 is a little disappointing -square footage- for a master bedroom in such a grand house - in fact at our little SkunK Luv Hut close to doubles that.  However, the Rec room is wunderbar!  Over 600 Square feet!  I'd like one of those!  As you see in the picture at the next link - great curb appeal - I wonder if the Realtor helped with that?
SEE HERE

Of course you can get into the real facts by inspecting the seller's property disclosure - learn about the basement flooding due to a plugged pit drain.  Learn that the pit was plugged due to wood shavings from a deck/patio project.  Pest control sprays every two months and that wine refrigerator in the basement?  Sorry, that goes with the sellers. 

Wait a minute.  No frig'en hot tub?!?  Over half a mil and no place to sweat out the days travails?  I hope that deficiency has been corrected by now!
See Here

SkunK

More Filings

Still going through Last Fridays' motion and Fiings to add the '516 patent.  Lots of reading 4y'all.  First one is the longest and the most interesting to me.  The SkunK calls this section " . . . to overcome the deterrent effect . . . (of) . . .  the patent laws."

21. In the Cardinal Ethanol lawsuit, GS CleanTech sued Cardinal alleging that Cardinal has infringed one or more claims of the '858 patent by virtue of its use of the corn oil extraction equipment supplied by ICM to Cardinal. On or about February 16, 2010, five days after the commencement of the Cardinal Ethanol lawsuit, Vander Griend, executed an amendment to an agreement between ICM and Cardinal wherein ICM agreed to indemnify Cardinal for any claims arising out of the infringement of adversely owned patents by Cardinal of corn oil extraction equipment purchased and used by Cardinal and furthermore wherein ICM specifically agreed to indemnify Cardinal and provide a defense for Cardinal in the Cardinal Ethanol lawsuit.

22. Upon information and belief, the main purpose of the indemnification agreements provided by ICM under the control of and at the direction of Vander Griend, is to overcome the deterrent effect that the patent laws would have on the Defendants.

23. Upon information and belief, by virtue of the actions taken by Vander Griend, who is in control of ICM and its operations, Vander Griend possessed specific intent to encourage ICM's customers to infringe one or more claims of the ‘858 and ‘516 patents and knew or should have known that his actions would induce ICM's customers to infringe one or more claims of the ‘858 and ‘516 patents. By virtue of the actions taken by Vander Griend, who is in control of ICM and its operations, Vander Griend has actively aided and abetted ICM in actively inducing its customers to infringe one or more claims of the ‘858 and ‘516 patents.

ICM See Here

Lincolway SEE Here

Big River SEE Here

Adkins SEE Here

SkunK
got 'er done

Legal Memo to add Patent

Interesting Filing - and here is a clue of the status of the discovery stage:

Defendants will not be prejudiced by the requested amendment. Discovery is still at the early stages. Depositions have not yet been taken.* The ‘516 Patent is related to the ‘858 Patent and is directed to the same technology. Adding the ‘516 Patent to the complaint will not unnecessarily delay the case given the similarities in the patents and the early stage of discovery.
See Here

SkunK
*The SkunK earlier highlighted a defendant legal filing that released the medical condition and treatment plan - concerning a GreenShift officer.  Their move seemed (to my non-legal mind) designed to embarrass, imtimidate and imply that GreenShift was somehow behind the defendants as far as providing people for depositions.  So have the defendants provided people to despose yet?  We find that as of today "Depositions have not yet been taken."

Flottweg Filing

Here (it appears to SkunK) is the heart of the matter:

27. On information and belief, as part of at least the start-up of any infringing corn oil extraction system installed by ICM, one or more Flottweg representatives is on site at such ethanol manufacturer's facility for purposes of and with the intent to instruct each ethanol manufacturer on how to perform one or more steps of the claims of the ‘858 and ‘516 patents.

Two good stories told here.  The SkunK calls them:  "A salesman went to a convention . . ."  AND "Thou shall not covet thy neighbor's wife patent." 

31. In February of 2008, the same representative from Flottweg who previously contacted GreenShift in the fall of 2006, approached the same representative of GreenShift at a biodiesel trade show. The representative from Flottweg again offered to sell Flottweg's centrifuges to GreenShift or GreenShift ethanol production customers for purposes of using such centrifuges to recover corn oil from the byproducts produced during the manufacture of ethanol from corn. During the conversation, when asked by the GreenShift representative, the Flottweg representative stated that Flottweg was well aware of GS CleanTech's then pending patent applications directed to recovering corn oil from the byproducts produced during the manufacture of ethanol from corn.

32. On November 27, 2006, nine months following the publication of the '859 application, which occurred on February 23, 2006, Flottweg filed a patent application entitled “Method of and Device For Increasing the Yield of Oil Production In a Process of Producing Bio-Ethanol" bearing serial number 11/604,435 (the '"435 application").

33. The claims of the published '435 application reveal that, shortly after the publication of GS CleanTech’s '859 application (which disclosed GS CleanTech’s invention directed to methods for recovering corn oil from the byproducts produced during the manufacture of ethanol from corn), Flottweg attempted to claim that it invented a device and method for recovering corn oil from the byproducts produced during the manufacture of ethanol from corn.

34. In an Office Action dated November 25, 2009 in connection with the ‘435 application, the examiner at the United Stated Patent and Trademark Office ("USPTO") rejected all of Flottweg’s then pending claims, in part, under 35 U.S.C. § 103 as being unpatentable over a United States published patent application 2008/0110577 to David Winsness ("GS CleanTech Prior Art").

35. David Winsness is not only the Chief Technology Officer for GS CleanTech but is also an inventor of the ‘858 and ‘516 patents.

36. In an Amendment filed on February 25, 2010, in response to the November 25, 2009 Office Action, Flottweg amended its proposed claims in an attempt to distinguish its claims over the GS CleanTech Prior Art.

37. In an Office Action dated June 10, 2010, the examiner at the USPTO again rejected all of Flottweg’s pending claims, in part, under 35 U.S.C. § 103 as being unpatentable over the GS CleanTech Prior Art in view of Herman et al. (US Patent 5,795,477).

38. The GS CleanTech Prior Art incorporates the disclosure of the '859 application into the GS CleanTech Prior Art by reference.

39. Flottweg advertises in Ethanol Producer Magazine, which is a publication published monthly that provides information to ethanol industry professionals worldwide, that Flottweg's centrifuges can, in connection with bioethanol production, be used for corn oil separation.

See All Here

SkunK

Proposed First Amended Complaint

Iroquois Bio-Energy Company
To the SkunK's untrained legal eye it appears that after the Markman Hearing the preliminary injunction could now be back in play?  Did things go well enough that this could now happen?  Or are the calculated potential damages reaching a point of the defendant's inability to pay it all back anyway?  Or is it all just a negotiating gambit or a copy/paste mistake?  In other words - does it mean something - or nothing?  My guess is one or the other, but you have to admit the possibilities are worth pondering.

PRAYER FOR RELIEF
WHEREFORE, GS CleanTech respectfully asks this Court to enter judgment against IBEC and against its respective subsidiaries, successors, parents, affiliates, officers, directors, agents, servants and employees, and all persons in active concert or participation with it, granting the following relief:

A. The entry of judgment in favor of GS CleanTech and against IBEC;
B. A preliminary injunction prohibiting further infringement of the ‘858 and/or ‘516 patents;
C. A permanent injunction prohibiting further infringement of the ‘858 and/or ‘516 patents;
D. An award of damages adequate to compensate GS CleanTech for the infringement that has occurred, but in no event less than a reasonable royalty for the use made of the inventions of the ‘858 and/or ‘516 patents as provided in 35 U.S.C. § 284, together with prejudgment interest from the date the infringement began;
E. An award to GS CleanTech of all remedies available under 35 U.S.C. § 284;
F. An award to GS CleanTech of all remedies available under 35 U.S.C. § 285;
G. An award to GS CleanTech of all remedies available under 35 U.S.C. § 154(d); and
H. Such other relief to which GS CleanTech is entitled under law, and any other and further relief that this Court or a jury may deem just and proper.
SEE Iroquois Filing All HERE

SkunK
I see now the multiple filings have internal to them a (proposed) Amended Complaint for each of the defendants.  Hence the reason for the (nearly, but not quite identical) multiple filings mentioned below my signature in the previous blog.  If the Judge approves adding the new Patent (U.S. Pat. No. 8,008,516) to the case, then these are the new charges added by GreenShift.

Minor Litigation Update

SkunK has been out and about for the last few, so I'm glad to have something for you tonight.  We have some updates on the litigation - but nothing too dramatic. 

Defendant's Exhibit?
See Here

Please add patent 8,008,516
SEE HERE

Proposed Order to add patent
See Here

SkunK

PS  I see a lot of other entries on Pacer but looking them over it appears they are all duplicates of the last two above and look to be just a clerical error.

GreenShift and its Four COES Patents

It's Official!  Here are the four GreenShift COES patents from newest to oldest.  SEE HERE on the USPTO site.

1)   8,008,517* Method of recovering oil from thin stillage. 30 August 2011.
2)   8,008,516* Method of processing ethanol byproducts and related subsystems. 30 August 2011.
3)   7,608,729 Method of freeing the bound oil present in whole stillage and thin stillage. 27 October 2009.
4)   7,601,858 Method of processing ethanol byproducts and related subsystems.  13 October 2009.

SkunK

*Get a load of the size of the "References Cited" and  "Other References" sections of the brand new, first two patents.