GERS argues to Dismiss ICM's Complaint

Remember that all these cases go back to the original jurisdiction if we actually get to trial. 

ICM filed against GERS the day GERS got their first patent.  ICM filed first to try and get a friendly home court advantage in Kansas.  ICM charged GreenShift with - of all things - ruining their business with all this patent talk - under the Kansas Consumer Protection Act?  

Apparently no one else has used the Kansas law exactly the way ICM has attempted to here.  Not sure why no one else has used it like this before, but of course I'm not a lawyer or anything.  As a guy who has been known to throw together a good yarn or two, I am really impressed with the originality involved in the ICM lawyering.  Terrific job of improvisation!   Yet still,  I am awful curious to see what the judge thinks.   They always seem to be more impressed with precedent, the way laws are worded - and boring stuff like that.  

By law, GreenShift notified plants that they thought were infringing their patent.  ICM's customers got upset when they found out they might be violating GreenShifts patent.   ICM comforted their customers by saying the letter was illegal and interfered with ICM's business.  And here we are . . . excerpts below:
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ICM claims that GreenShift “falsely and materially misrepresented liability” and “knowingly and/or intentionally misrepresented that ICM’s customers had liability.” FAC at ¶¶ 11 & 14. But these naked assertions by ICM are simply not accurate. Not only is ICM unable to show that GreenShift’s statements are false, but ICM also admits that they are not false.

Thus, as did the plaintiff in Stephens, GreenShift had the right to send the July Letters and October Letters to await patent issuance to see if its infringement  allegations were correct. It turns out GreenShift was correct.

Although there appear to be no Kansas cases addressing Kansas unfair competition law based on false advertising and the alleged misuse of a patent and/or patent application, to the extent that such a cause of action is recognized under Kansas law, Defendants submit that ICM fails to set forth any elements of such a claim or state a claim upon which relief can be granted for any such claim.

CONCLUSION
For the reasons set forth above, (a) Count I of ICM’s Fourth Amended Complaint should be dismissed under Rule 12(b)(6); (b) any claims arising out of any alleged violation of the Kansas Consumer Protection Act under Count I should also be dismissed under Rule 12(b)(1); (c) Count II of ICM’s Fourth Amended Complaint should be dismissed under Rule 12(b)(6) for failure to plead with particularity under Rule 9(b) to the extent that Count II seeks a declaration that the ‘858 and ‘516 patents are unenforceable; (d) Count II should be dismissed for lack of standing under Rule (12)(b)(1). Alternatively, if this Court is not inclined to dismiss all of ICM’s claims, then, in the interest of justice, Defendants seek transfer of ICM’s claims to the Southern District of New York for all post-MDL proceedings where the NY Patent Infringement Case is pending.

See All Here
GreenShift also wants a three hour Oral Argument to present this case.
Request for Oral Argument here

SkunK