ORDER++

The Court has reviewed the parties’ arguments and for the following reasons, DENIES CleanTech’s Motions to Dismiss and GRANTS Defendants’ Motion for Leave [master dkt. 325] and GRANTS GEA and Ace’s Motion for Leave [master dkt. 345].

Because Flottweg failed to file a motion for leave to amend its pleadings and it may not add counterclaims asserting the ‘517 Patent as a matter of right, CleanTech’s Motion to Dismiss Flottweg’s counterclaims is GRANTED [master dkt. no. 338].

III. CONCLUSION

For the foregoing reasons, the Court GRANTS both Defendants’ and GEA and Ace’s Motions for Leave to Amend their Pleadings [master dkt. nos. 325 and 345 respectively] and DENIES the majority of CleanTech’s Motions to Dismiss Counterclaims [master dkt. nos. 293, 295, 297, 300, 302, 304, 315, and 328]. However, the Court GRANTS CleanTech’s Motion to Dismiss Flottweg’s Counterclaims [master dkt. no. 338] because, as explained above, Flottweg may not amend its Answer to include material that is not directly responsive to CleanTech’s addition of the ‘516 Patent to its Complaint as a matter of right. Furthermore, the Court DENIES as MOOT CleanTech’s Motion to Dismiss the Amaizing Defendants’ Counterclaims [master dkt. no. 287]. Finally, the Court notes that CleanTech’s Motion to Dismiss Al-Corn Clean Fuel’s Counterclaims [master dkt. no. 291] is DENIED as MOOT as Al-Corn Clean Fuel filed an amended answer at master docket number 306 that included amended counterclaims. CleanTech moved to have those counterclaims dismissed in master docket number 315, which the Court has ruled on above.

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SkunK

SkunK take:  There are two types of orders in litigation.  Procedural and ones of substance.  We have had very few decisions of substance.  As you read the current 10KQ that is made plain:

"On September 29, 2011, the Court issued its ruling with respect to claim construction."

"There have been no other substantive rulings on the merits on any of the actions included in the MDL Case and Management is unable to characterize or evaluate the probability of any outcome at this time."

I believe that the statement above is still very true today.  The matters concerning this order above are procedural - concerning bringing in the '517 patent and the ability of the dependents to file ammended counterclaims having to do with the '517 patent.  This order does not address the merits of the '517 patent nor the merits of the counterclaims. 

However, do not be confused and think I am saying that procedural orders are not important.  They obviously can give a tactical advantage to one side or the other.*  Yet they do not concern the merits of the case - the merits of the case are what will ultimately decide the outcome here.  A case that appears fair, balanced and even-handed in the matters of procedure, will more likely stand against appeal. 

*(In this case I am not even sure why GreenShift chose to try and not assert one of its patents.  Maybe someone with more knowledge here can tell us exactly how GreenShift is now hurt greviously by having to assert it?  Remember the judge is NOT tossing out a GreenShift patent - He is tossing it in!)