Monday, October 31, 2011

COES in China

Here is a company in China that is making ethanol (alcohol) from corn for human consumption.  They also produce corn oil and ddgs as by products.  It is not known who is the crude corn oil technology provider.

The Company's crude corn oil project is located in its Shandong facility and has a designed capacity of 13,000 tons per year. The project is currently producing approximately 1,000 tons per month.

See Here

SkunK

Friday, October 28, 2011

OCBE

Over Come By Events.  The court approved GreenShift's Motion for Extension of Time to Propose Amendments to Case Management Plan until the 26th.  The Proposed Amendments were already filed on the 26th and permission to do so was then signed in the document below a day later - the 27th.  Just shows things are moving fast and the paperwork sometimes lags the real sequence of events.

SEE new filing HERE

SkunK

Thursday, October 27, 2011

COE Featured in GPRE 3Q!

Corn oil production was just one of the bright spots in Green Plains Renewable Energy Inc.’s third quarter financial report, discussed in a conference call Oct. 27. With installation of corn oil extraction technology completed at all nine GPRE ethanol plants in the third quarter, the company produced 32.7 million pounds of corn oil and generated operating income of $9.6 million, said Todd Becker, president and CEO.

The company had predicted it would produce about 100 million pounds of corn oil yearly but that number is actually closer to about 120 million pounds. Although corn oil yield can depend on corn quality, GPRE expects it will increase its corn oil production numbers as it completes debottlenecking at some of the lower performing plants, Becker said. Payback for installation of the technology was less than a year.

SEE ALL HERE

See Actual Transcript HERE 
An Edit/Find shows "corn oil" mentioned and discussed 5 times in the body.  Now that they got the Q/A transcript done I see six more mentions for a total of 11.  Also note to the right column at the start - right now it says the highest searched item is "corn oil"  Way to go Green Shifters!

SkunK

10K/A

As of June 30, 2010 (the last business day of the most recently completed second fiscal quarter) the aggregate market value of the common stock held by non-affiliates was approximately $1,740,000.

As of March 30, 2011, there were 15,234,104,393 shares of common stock outstanding.

Amendment No. 1

This amendment is being filed in order to correct an error in the certifications filed as Exhibit 31.1 and Exhibit 31.2. No other changes have been made nor has the information contained in this Report been updated. You should refer to the reports subsequently filed by GreenShift Corporation for more current information.

HERE

SkunK

This is last year's Annual Report, being updated due to two exhibits: 31.1 and 31.2.  I set up the links for the new ones (with today's date) above - and the old ones below - just click on the exhibit.

Here are the old ones.  Note the signature date is 31 March 2011.
Exhibit 31.1

Exhibit 31.2

I believe this is just a technical thing to ensure compliance with all the new Wall Street rules - since the only diffeerence I see is this paragrah is added to #4 in both exhibits

"Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluations; and"

PARTIES’ PROPOSED AMENDMENTS TO CASE MANAGEMENT PLAN

Here is the proposed schedule for the patent litigation with everyone's imput.  One thing interesting to see is the proposed settlement demand:

"Plaintiff(s) shall make (but not file with the court) on or before November 18, 2011, a settlement demand. Defendants shall provide (but not file with the court) a response thereto within 30 days after receipt of the demand." 

and

"Adkins agrees with Plaintiff’s initial proposal that Plaintiff(s) shall serve (but not file with the court) on or before February 27, 2012 [no later than 150 days after the court’s Markman decision] a statement of damages to be sought at trial, if any, and make a settlement demand. Defendant(s) shall serve (but not file with the court) a response thereto within 30 days after receipt of the demand."
SEE HERE

SkunK

Wednesday, October 26, 2011

GPRE Reports

Corn Oil Production Segment
Green Plains initiated corn oil production in the fourth quarter of 2010. By September 30, 2011, corn oil extraction technology was deployed at all nine of the Company's ethanol plants. During the third quarter of 2011, the Company produced 32.7 million pounds of corn oil generating operating income of $9.6 million.

SkunK

Thanks Slash for the heads up

Connection between Fagen and Platinum

Fagen Inc and Platinum Ethanol LLC have begun litigation against GreenShift for breach of contract?  and it was covered in this recent blog.  It appears to me that they installed a patented GreenShift COES without a signed contract and then when they went to get one after the fact, they had some trouble.  They decided to sue before getting sued - implying the COES contract was implied.  At least this scenario fits the facts I now have.  Here is the present schedule although I have not found the original complaint.

The most interesting thing I have found is the relationship between Fagen Inc and Platinum Ethanol.

Ron Fagen, is the majority owner of Platinum Ethanol.  Mr. and Mrs. Fagen serve on the Board of Directors of Platinum Ethanol.  Mr. Fagen’s is President and CEO of Fagen, Inc., and Mrs. Fagen’s present principal occupation is Director of Human Resources of Fagen, Inc.  Mr. Fagen and Mrs. Fagen are the only persons controlling Project Viking, LLC.  They and/or Project Viking LLC own or have owned significant interests in at least the the following Plants:
HERON LAKE BIOENERGY, LLC  
Granite Falls Energy, LLC
Golden Grain Energy, LLC
US BioEnergy Corporation
EAST KANSAS AGRI ENERGY LLC

Here is a picture of Platinum's Board of Directors.  Mr. and Mrs Fagen are circled in the back row.















Mr. Bowdish is the General Manager of Platinum Ethanol and is in the first row inside the circle. 
From June 2007 to November 2008, Mr. Bowdish was a member of the project development team at Fagen, Inc., Mr. Bowdish previously served on the Board of Platinum Ethanol, LLC in Arthur, IA, from October 2008 to December 2008, before he was appointed its General Manager. Since 2008, he has served as the General Manager of Platinum Ethanol, LLC where he is the sole manager of Platinum’s commodity margin and its risk management strategy.

Jennifer Johnson is standing to the right of Mr. Fagen.  This article lists a Jennifer Johnson as the CFO of Fagen Inc.

Matt Sederstrom is kneeling outside the circle, in the front row of the picture.  There is also a Matt Sederstrom serving as the V.P. Marketing and Project Development at Fagen, Inc.

Chad Core is not in the picture but is listed as a member of the Platinum Ethanol Board of DirectorsThis article identifies Chad Core, "a long-time employee of Fagen Inc".  It appears he moved to Hungary to head up the new office for Fagen Inc and was not available for the picture.

Becky Dahl is listed as "Executive Assistant to the Board" and a Becky Dahl is also listed as Administrative Assistant at Fagen Inc HERE.

Dave Reinhart is standing to the far right, back row in the picture of Platinum Directors.  A Dave Reinhart is also listed as being a Fagen Inc. appointed Director at Corn, LP HERE

So what, SkunK???

So the Platinum Ethanol Board of Directors might as well meet in the Fagen company cafeteria.  Just thought you would find that interesting.

SkunK

These Ethanol Plants are listed as Fagen Projects

Tuesday, October 25, 2011

Watch Closely

Today PennyLaneReports.com announces 9 stocks to watch closely: Stevia (OTCBB - STEV), Raystream (RAYS), LoneStar Gold (LSTG), Sky Power Solutions (SPOW), IceWeb (IWEB), Tivus (TIVU), Eco Ventures Group (EVGI), Greenshift Corp (GERS), and Avstar Aviation (AAVG).

SkunK

GERS Opposition to Quash

CleanTech alleges that Vander Griend personally actively induced infringement of the ‘858 patent by agreeing to indemnify its customers for any claims arising out of the infringement of adversely owned patents as a result of the customers’ purchase and use of ICM’s corn oil extraction equipment.  These indemnification agreements specify that ICM will provide a defense for the customers, at ICM’s expense, against CleanTech’s assertion that the customers infringed one or more claims of the ‘858 patent.

SEE HERE

SkunK

Monday, October 24, 2011

Institution Buying GPRE due in part to corn oil

Corn Oil Production has recently been disclosed as an operating segment as plants have been retrofitted with corn oil extraction equipment over the last two quarters. This is a high-margin co-product that enables Green Plains to increase their overall margin. In other words, instead of recovering value only from primary operations, the company is now able to extract non-edible corn oil immediately prior to production of distillers grains.

Corn oil is used as an additive to animal feed and for the production of biodiesel. 

SEE HERE

SkunK

3Q Results

Green Plains Renewable Energy, Inc. (Nasdaq:GPRE) will hold a conference call to discuss its third quarter 2011 financial results on Thursday, October 27, 2011 at 11:00 a.m. ET.


SkunK

This should provide us with some numbers on which we can estimate GreenShift revenues for the 3Q.  We can take the ratio of GPRE corn oil production per gallon of ethanol produced and apply this to the overall ethanol production GreenShift has under license (minus the COES still under construction.) 

Friday, October 21, 2011

Platinum Litigation

It appears GreenShift was sued in April this year by Platinum Ethanol and Fagen.  I cannot find the original complaint since it was filed in a local county court (Yellow Medicine County) and the case was transfered up to Minnesota District Court at GreenShift's request.  I have found GreenShift's answer to the complaint filed in higher court while I stumbled around Pacer.  GreenShift's answer gives an idea of the original complaint.  It appears there was (still is) confusion if Platinum has a GreenShift COES license?

"Defendants have not provided a license for the use of GS CleanTech’s patented processes at Platinum."

". . . Platinum is potentially exposed to patent infringement claims relating to patents owned by GS CleanTech."

"Plaintiffs’ claims are barred because no agreement was ever executed and Plaintiffs were at all times aware that a final, executed agreement was required before a contract could be formed or entered into by the parties."

SEE HERE

SkunK
I will try to work this as I can but maybe someone can help find the original complaint - or the status of the GreenShift - Platinum Ethanol COES connection. 

Thursday, October 20, 2011

SIRE Update

Remember back in July of 2010 when ICM unloaded one of their two Tricanter Flottweg centrifuges - to SIRE - in their Inventory Blowout Sale?  I covered their "secret" agreement at the same time.  I have also had updates HERE and  HERE and HERE. 

Any who, I have always wondered exactly "WHY" SIRE would make such a decision in the midst of a well publicized litigation.  Although many have licensed with GreenShift during these past two years, SIRE was one of the few (or only?) that have gone with an ICM Tricanter since the GreenShift COES patents were issued and litigation began.  I think I found the reasons "why" in their last public filing HERE:

We can start with:

"Our plant was constructed by ICM, Inc. (“ICM”)."

But more important is this:

Bunge and ICM hold a significant amount of equity in us, and ICM and Holdings issued us the Convertible Debt.  We also have material commercial arrangements with Bunge and ICM.

ICM Holds Convertible DEBT over SIRE:

Under the Convertible Debt, we must use 24% and 76% of the proceeds of this offering to repay the ICM Note and the Holdings Note, respectively. Accordingly, if we issue $10 million of Notes in this offering and we incur offering costs estimated to be $125,000, approximately $2,370,000 and $7,505,000 would be required to be used to repay the ICM Note and the Holdings Note, respectively.

ICM currently Appoints a Director at SIRE
"Most particularly, our directors who were nominated by Bunge and ICM have duties and responsibilities to those companies which may conflict with our interests."    ". . . ICM would continue to appoint one director."

Threat of dilution:
Unitholders will experience dilution if Holdings converts any of the Holdings Note into Series U Units or if ICM converts any of the ICM Note into Series C Units. 

Seems fair enough to me (said the umpire as he called the first batter out before his son threw the first pitch) category:
Consequently, the terms and conditions of our agreements with ICM and Bunge have not been negotiated with independent parties.  Therefore, these arrangements may not be as favorable to us as could have been if obtained from unaffiliated third parties.  Most of the cost of our project has been paid to ICM for the design and construction of the Facility.  In addition, because of the extensive roles that ICM and Bunge had, it may be difficult or impossible for us to enforce claims that we may have against ICM or Bunge.

SkunK

In all fairness, they also say that the ICM director does not vote on specific ICM contracts.  All GreenShift Investors know too much about Convertible Debt and the threat of dilution, and so I feel I do not have to explain that.  For me at least, I no longer wonder why SIRE bought the ICM TriCanter.

Seven Day Extension

Pursuant to the Court's Order of September 30, 2011, the parties have exchanged written proposed amendments to the discovery plan, including Phase II dates. It appears that the parties are somewhat close on several of the proposed dates. Consequently, CleanTech requests an extension of an additional seven days to file the proposed amended Case Management Schedule to allow the parties additional time to try and narrow the issues regarding dates.

SEE HERE

SkunK

Monday, October 17, 2011

Personal Liability?

MOTION TO DISMISS DAVID J. VANDER GRIEND AS A PARTY
SEE HERE

SkunK

Were they still Experimenting in 2003?

After the Markman ruling shot down Prevost, it seems the infringing defense is left with a single legal theory.  It is called the one year rule. 

"The one-year rule, also known as the one-year grace period or on-sale bar, is a doctrine that prevents an inventor for acquiring patent protection if the application is filed more than one year of the following: 1) any public use of the invention by the inventor, a sale of the invention, an offer of sale, or public use of the invention in the United States, OR 2) any description of the invention by the inventor in a published document (i.e. a printed publication) in any country."

"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)."

Or in the words of the Supremos:

"First, the product must be the subject of a commercial offer for sale.... Second, the invention must be ready for patenting. That condition may be satisfied in at least two ways: by proof of reduction to practice before the critical date; or by proof that prior to the critical date the inventor had prepared drawings or other descriptions of the invention that enable a person skilled in the art to practice the invention."

The Defense has claimed to have found an email, with an offer to sell by one of the inventors that breaks that one year deadline.  They are also trying to impeach the testimony of the inventor because he failed to produce the email to them during discovery.  They did this by sandbagging that very email through discovery and springing it on the inventor during his disposition.  That's right, they are trying to impeach his testimony based on claiming he was sandbagging what they sandbagged.  Accusing someone of doing what they admit doing.  It gets better.

First, lets try to come up with a logical reason for someone not producing an email written in 2003 by asking this simple question:  Can you produce your emails written in 2003?  Do you remember your emails from 2003?  No, most cannot.  I set here prior to lunch trying to remember what I had for breakfast.  Unless I wrote emails from a large company account, with a backup server, or had a hardcover paper filing system, I do not think I could find any 2003 emails.  I certainly do not have access to them.  That was 6 tits-up hard drives ago.  The use of "backup data servers" and "off site server storage systems"  or on-line internet based email systems are nearly universal now - but they were uncommon then.  Vortex Dehydration Technology seems like a one horse, under capitalized, shoestring (in the best sense of the word) outfit that is no longer in business (although they still have an old web site) - that probably had shoe boxes in the trunk of the company car for current sales and tax material - and little else.  It does not surprise me that the inventor had a hard copy of a sales letter, but not a copy of all his emails.  Nor does it surprise me that the fixed Agri-Energy Ethanol plant still has a copy of the 2003 emails.  It is likely a simple question of access to capital in 2003 and since to create a stable data storage.

Next lets take on the question of Mr. Cantrell's employment.  As part of the reason for hiding this email at discovery the defendants claim Mr. Cantrell was not a GreenShift employee:

"Thereafter on May 12,2011, Defendants issued a notice of deposition and a subpoena to Mr. Cantrell, who was not then (2003) and is not now (2011) employed by Plaintiff."

To make it understandable I put in the years above to which "then" and "now" refer.  This is the type of lawering that makes lawyers so well esteemed in our society today.  So the defendants claim they did not have to present this since he was not an employee in 2003 nor 2011 and leave out all the years in between.  Nice.  Real nice.

WAS This an EXPERIMENTAL Phase?

All you have to do is go to Exhibit C and read the first letter dated 18 August 2003.

Goal is to install and TEST the equipment.

At THAT TIME we will know the quantity of oil produced.

We will THEN test the quality of the oil.

Is it really the defendant's stance that this was a fully developed system offered for sale?  The inventors (although they had swags) did not know the quantity nor the quality of oil actually produced by their system.  As you read on you see things like "potential improvements"  and terms like "from what we have learned so far" and "if we are successful", and "we should be able to determine this with a few days of testing".  The system planned appears to even use the windaxe at the time.

If you are still not convinced this is an experimental phase - get this from the last parts of Exhibit C:

"To prove this theory, I think the next logical step is to do a small spin test at your plant with a Gyro tester and fresh product." 

The Emails going into the spring of 2004 still express amazement at the results and beg for non-disclosure.  They admit that this is the first time this was done and they were never really sure what would happen until they actually got away from the bench and tried it with real equipment in real conditions.  They go on and one about testing protocols and trying to establish base information for a discovery in progress.  Yes, there are basic drawings but does it show the system that was eventually patented?  Does this sound like a system ready for patent using the defendant's own exhibits?  Or do you think the inventors were still in a testing phase in the late summer/fall of 2003?  By the way, a search of the word test/testing in Exhibit C alone gave 45 results.  Now you put yourself as Judge/Jury and decide whether they were still testing and experimenting.

SkunK

Defendent's Exhibits A, B, C

Exhibit A
Cantrell Statement to USPTO

Exhibit B
Cantrell EMail
Second link to same email (reported trouble with first link)

Exhibit C
Various other EMails and things

SkunK

Sunday, October 16, 2011

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 HEREBut 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

Defendant's + Adkins Reply

Except for the first link this is all about the Defendant's side of the Dave Cantrell deposition.

CEO of ICM makes Special Appearance HERE

Defendants Reply Here

Adkins Reply Here

Adkins Email

Adkins Email Affidavit

SkunK

Friday, October 14, 2011

Adkins Energy’s Objections Overruled by Court

The court heard argument from the parties regarding the plaintiff's Rule 34(a)(2) request to conduct an inspection of defendant’s ethanol facility and take samples throughout the manufacturing process, according to a protocol described by plaintiff GS Cleantech’s counsel. The parties had scheduled a plant inspection for Tuesday, October 11, 2011, but disagreed regarding sampling requested by the plaintiff. The court ruled that the plaintiff’s discovery request is in accord with the requirements of Rule 34 and Rule 26, and overruled Adkins Energy’s objections to the inspection and sampling.

SEE HERE

SkunK

So what exactly do you call paranoia based on experience? lol
Of course the SkunK would want to see the maintenance log and the valve log and the recent clock rings of the maintenance employees.  Those details would make it harder to hide any recent nefarious "projects" in the vicinity of the oil extraction equipment.  Of course production will show a recent drop if the concentrated stilage heating equipment has been removed.   Remember to always look for the anchor holes in the concrete.  It's easy to move equipment out of the building but awful hard to patch concrete anchoring holes - it is just impossible to match the color of aging concrete.  Exposed untarnished pipe threads - the untarnished gnarl line of a pipe held by a pipe wrench, the SkunK could go on and on about the tell tale scat left at the scene of a crime possible covered infringement.  But why?  I'm sure the GreenShift team will spot a Blazing Saddle cardboard set a mile away.

Thursday, October 13, 2011

Timing of the Reverse Split

What the Company said and when they said it:

This is from the 2Q, page 22 HERE and was filed the 9th of August:
**************
"NOTE 15 SUBSEQUENT EVENTS
On July 22, 2011, the Company announced its intention to complete a 1 for 1,000 reverse stock split. All stock prices, share amounts, per share information, stock options and stock warrants in this report do not reflect the impact of the reverse stock split, as the reverse split is not expected to become effective until the latter half of the third quarter of 2011. Every thousand shares of issued and outstanding Company common stock will be automatically combined into one issued and outstanding share of common stock, without any change in the par value per share. The reverse split will reduce the number of outstanding shares of common stock from about 14 billion to about 14 million."

*************
The next day GreenShift put out the DEF 14C HERE.  This is the only reference to the timing that I found:

"On or after September 6, 2011, the amendment of the articles of incorporation will be filed with the Delaware Secretary of State and will become effective."
************

SkunK's Comment:

The September 6th reference is a +month past and the "latter half of the third quarter of 2011" is nearly two weeks past.  I suspect with all the filings and rulings there is a lot happening all at once.  Heck, we may even have some negotiations going on after the Markman ruling.  A potential settlement and other things may have an immediate effect on the share structure and the stated purpose of/need for the reverse split.   Negotiations mean "quiet" and it sure has been shhh quiet.

At this juncture my guess - and that's all it is - would have the R/S happening this week or next.  If we get too far out beyond that - then GreenShift may have to refile the 14C, and I would think they would try to avoid that.  If something bigger is in the works then all bets are off and we will see the results in filings and maybe even a PR of one sort or another. 

Defendant's Motion

Defendants recently sought Plaintiff’s agreement that the Substantially Oil-Free Syrup Construction should apply to all independent claims of the 858 Patent, but Plaintiff rejected Defendants’ proposal. As a result, Defendants seek clarification that the Substantially Oil-Free Syrup Construction applies to all independent claims.

SEE HERE

SkunK

Wednesday, October 12, 2011

Tuesday, October 11, 2011

Corn Oil Extraction now has (wall) Street Cred (II)

The rush to Extraction of Corn Oil by the Ethanol Industry has made the Wall Street Journal. 
See Here

SkunK
Article is dated 28 Sept, but I felt this kind of exposure needed to be pointed out. 

Friday, October 7, 2011

Markman Transcript

The Markman hearing transcript will be public in ninety days.  Before it is released both parties have a chance to redact.  Here is what I saw when I tried to access it:
*************
You do not have access to this transcript.
TRANSCRIPT of Markman Hearing held on August 22, 2011 before Judge Larry J. McKinney. (132 pages.) Court Reporter/Transcriber: Cathy Jones (Telephone: (317) 423-0436). Please review the USDC Transcript Policy for more information on redaction procedures. Redaction Statement due 10/28/2011. Release of Transcript Restriction set for 1/5/2012. (Jones, Cathy)
More Rules - see Here
 
******************
The 20 page filing below is very revealing about the desperate, bush league tactics the defendants have resorted to.  Sorry, but I am trying to be kind.  I am not going out on a limb saying they are not gonna get the sportsmanship award.  It will be interesting to see what the judge thinks.  I see the GreenShift lawyers gave importance to the same telling ICM PR that the SkunK did:
 
"On September 15, 2011, CleanTech’s counsel sent Defendants’ counsel a letter (Exh. E) addressing, among other things, ICM’s press release dated August 9, 2011 titled “ICM, Inc. Continues to Offer Oil Extraction Alternatives.” In its press release, ICM claimed that “[t]here is substantial evidence not before the USPTO and not yet presented to the federal courts that impacts the validity of the GreenShift patents.”
 
And have the same idea as the SkunK about how discovery should work:
 
"Here, defense counsel deliberately delayed production of critical responsive documents by claiming work-product privilege while all the while intending to produce these documents in order to sandbag Mr. Cantrell. This bad faith strategy was orchestrated to shock and embarrass Mr. Cantrell and eliminate the ability of Mr. Cantrell and his attorneys to discuss the documents and prepare for the deposition. Such bad faith, dilatory tactics fly in the face of the discovery rules and the Case Management Order and should not be countenanced by the Court."
*****************
Very Important is this First Footnote:
 
"CleanTech vehemently denies that the wrongfully withheld documents affect the validity of the patents-in-suit."
 
You Gotta read this  - it is 20 pages and has the above quotes.
************
************
GreenShift's motion for protective order and order for defendants to produce documents HERE

Under Seal
There is also about four sealed motions mixed in with the GreenShift filings that I cannot access  - they are sealed - but I figure they also are GreenShift's since they look like they were filed together with the other open GreenShift filings.
 
SkunK

Thursday, October 6, 2011

Summoned

Summons Served on ICM CEO


GreenShift Request to expand Summons time


GreenShift Opposition to ICM's move to add '517

SkunK

Telenovelas
Not sure if this is the first time I said it, but this IS gett'ng more twists and turns than a Mexican Soap Opera.

Quash

ICM moves to quash the summons.

See Here

And Here

And finally HERE

SkunK

Wednesday, October 5, 2011

Corn Oil Article Coming

 SEE HERE
My next feature for Ethanol Producer Magazine will delve into these questions, focusing on corn oil as a feedstock for biodiesel production. Mainly, is it feasible for ethanol producers to build on-site biodiesel plants, thereby creating an additional revenue-producing product from a feedstock produced on site? Who are the major players working on making this a reality? Are there corn oil producers out there that feel that delving into biodiesel production wouldn’t be a good idea? If so, why?

I’m actively looking for people to interview for my story in the next few weeks. If you or somebody you know would be a good person to interview on this subject, please let me know as soon as possible. Send me an email at hjessen@bbiinternational.com or call me at (701) 738-4946.

SkunK

Maybe some of us GreenShift investors can email her with our ideas on who to interview . . .

Summons

The picture above is missing something.  See all Here

SkunK

PS.  I expect another filing when it has been served.  Then within 21 days after that - the response filing will be fascinating.  Will it shed some rare light upon the internal workings of ICM, a private company?  One of the possible defenses is the decision to infringe was made by someone else.  I cannot see that defense made. 

Will the defendant continue to argue invalidity/Prevost after the Markman rulings?  No matter the question - that has always been the answer in the past.  I cannot see that ol'Prevost defense being made after what the court just said.  It is kinda interesting GreenShift (or was it the court that issued the summons?) waited until AFTER ICM's owner complained that he had not yet been served - AND after the Markman obliterated Prevost - to serve the obvious decision maker. 

Will the defendant simply try to impeach the inventors to answer the reason for his decision?  If ICM has some information that the inventors need to explain - how can that justify his decision to infringe before he had the information about the inventors?  If this argument is made then it will really show a desperate attempt to deflect.  OK, so the SkunK will predict this will be the path they take.  It appears to my non-legal mind that that's all they got left. 

I also expect them to throw in a prior legal opinion by some law firm.  A paying client can shop for an opinion and get a legal firm to write down friendly legal advice.  Then the client can say that they were acting on the legal advice - so even though they were wrong - it is not soooo bad since they were merely acting on legal advice.  The problem with this for the SkunK is it can obviously be done with intent to establish an alibi before the crime (metaphor? you decide). 

Since this system of getting a legal opinion is fee based, lawyers may be clapping, however juries may be unimpressed.  At the very least this may be viewed by a normal common sense individual (i.e. jury)as an attempt to CYA - with prior knowledge you were skating on thin ice.

In my opinion -  GreenShift lawyers have perfectly set up this personal response to a legal question - AFTER all his answers have been taken away.  

When the best answer left is settlement - will it happen?

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."
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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."
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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."
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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,
SkunK
 
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