This is a solid win. Not a minor win. Neither a knockout punch. This is another win in a string of wins.
Discovery Order Here
SkunK
Favorite quote from the order:
"The extent to which the plaintiffs—now faced with the Markman ruling that the de-oiled concentrate stream is one “substantially free of oil”—must further explain the line or range above which the stream is no longer substantially free of oil is either
(a) an issue to be explored on summary judgment;
(b) an issue to be explored through a motion to construe the meaning of “substantially free of oil”; or
(c) an issue for trial.
Further, it appears that the issue of where the line is drawn is one for which expert testimony may be necessary, or at least desirable."
Why is this a significant win? In my opinion it shoves the defendants towards settlement. Why? Because it shows the defendants three options to get the answer to their question - none of which they can be looking forward to. I will take them one at a time.
(a) an issue to be explored on summary judgment;
If the defendants got what they wanted - the patents declared invalid - there would be no reason to have a discussion after a summary judgment about what "substantially free of oil" means. You would only have that discussion if the patents were upheld and the judge had to decide on the limits of the patent. Sounds to me like a hint.
(b) an issue to be explored through a motion to construe the meaning of “substantially free of oil”;
Do you really think the defendants want to allow this court to decide the case now? They have not had much luck with their point of view prevailing. The judge decided "substantially free of oil" in the Markman hearing. The court has said that all parties know how much oil is left. The plaintiffs know, the defendants know and the judge knows. Lets say the most it contains is X% of oil. All the judge would have to say is X+1% and the defendant's case fades like an afternoon sunset off Big Sur.
(c) an issue for trial.
Mo' money, Mo' risk, Mo' time. Nothing the defendants want. GreenShift is winning the war for market share. The patents are assumed valid and have to be proved otherwise. David normally does pretty well against the Goliath with John Q. Citizens will relate and pull for the little guy. Big companies all know that. And while the little guy can count on being out-lawyer-ed when facing Goliath - I have only seen the exact opposite up to this point. :~)
Well that's my opinion and I'd be happy to hear yours in the comment section
Wednesday, March 21, 2012
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5 comments:
While I do believe what you are saying with your optimmism here skunk and feel the same way myself. Let's not get overly optomistic. The reality is this. If the judge is moved to a percentage number rather than the process itself that could be bad. It is a trick of the defense to get a percentage number at wich point all they would have to do is to detune the installations one percentage point below what is established and say ok we are not infringing our installations only put out x%. And they could continue istalling new installations at this rate, giving said percentage discounts on their royalties to make up the difference to their clients to the point at wich their clients was getting the same benefit that greenshift custommers where. It would cut into icm's profits yes but it would not be the victory that we are looking for. I'm generally optomistic about the trial and I do believe the greenshift lawyers will find a way to put a stop to icm's fiasco. But now they have to do just that to me this shows some incompetance on the behalf of the greenshift lawyers as they should have objected at that point and stated its a process not a % patent. It should be also considderred like the differance between the hammermill and the tornadoe. So let's keep it real. Very informative article and good dd nice work skunk its just not what we was hoping to hear those of us who are realist. That is a painful truth for us. But I do still have confidence in the greenshift team of lawyers.
Looks like a good result for Greenshift.
Motion is denied that Greenshift has to further define"substantially oil free"
The judge affirms that the Markman ruling has been held and ruled, they had there chance to argue about claim construction tems, they have missed the bus on that one, we have moved past that stage.
It would seem that the only way the patant can be declared invalid is due to not being definite enough. It looks like the judge at the moment is happy with the terminology. I think a layman can understand "substantially oil free" it does not need an expert skilled in the art. The burden is on the defendants to prove otherwise, I do not see how it can be done.
I think the very worst case scenario is we have to apply a % number to Oil free, and that does not look like it will happen.
It is a great judgement for Greenshift, another step on the road. It looks more and more like they will win the case, after that it will just be about the money!!
totaltruth,
ICM doesn't charge a royalty to their customers. It's a one-time fee, which means there won't be any way to offset all future lost gains from installing a separation system that doesn't actually separate much of the oil for sale. Those who already have an infringing system have already paid for them, or financed them, so there's no way for them to recoup those future losses. Which ethanol plant would want to deal with that, when the alternative (GERS COES) is to make more money by extracting as much oil as possible? In addition, if the litigation is lost by the defendants, they still need to cough up back royalties, so I don't see this as bad in any way. This is a win, specifically because the defendants are not getting what they asked for.
They dont charge royaltys cause they dont have any patents to get a royalty on. who would pay a royalty on a system getting less oil with nonexistant patents? Better to license and make more money even after royalty to Gers. hard to believe infringers still trying to change markman hearing six months after ruling DENIED
Oh my Dear Lord!
The last time I said that is when I broke the GPRE news!
http://messages.finance.yahoo.com/Business_%26_Finance/Investments/Stocks_%28A_to_Z%29/Stocks_G/threadview?bn=77822&tid=26381&mid=26381
I believe I've stumbled upon substantial news!
This is big!
I'll get this out to you all as soon as possible!(Unless someone beats me to it)...Dig Greenshifters! Dig!
!$!$!$!$!$!$!$!$!$!$!$!$!$!$!$!$!$!$
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