FLASHBACKs and Review

Now that you have read the Defendant's idea of why they are not infringing - ask yourself:  Did they read or remember this court ORDER back in March?

"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."

"Moreover, both sides know the percentage of oil in the concentrate stream for these defendants and that the plaintiffs contend that percentage falls within the “substantially free of oil” claim of the patent."

"For these reasons, the court DENIES the moving defendants’ request that the court order the plaintiffs to supplement their discovery responses by identifying the percentage line or range above which the concentrate stream is no longer substantially free of oil."

See HERE

SkunK

First the Defendants talked of Prevost as prior art, even though the US Patent Office had ruled against them. This was the issue that we were promised would crush GreenShift in court.  ICM issued numerous PRs talking of this prior art.   It took the judge in the Markman ruling (page 23) to slam that down ("completely without support") when he said:

"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."  HERE

Second the Defendants hid discovery and tried to blindside GreenShift with an old email.  The judge reacted by forcing the defendants to pay a portion of related GreenShift legal fees. 

"Although the court has not granted CleanTech all the relief it sought and has found counsel’s instruction not to answer improper, it has vindicated CleanTech’s position that the defendants improperly withheld critical documents on baseless grounds. That conduct triggered all the disputes now before the court."


"The court awards CleanTech, and against the defendants jointly and severally except for Adkins Energy, one-half its reasonable fees in drafting the motion for protective order, the brief in support, and supporting declaration."  SEE HERE

Defendants are still pressing the issue of the one year limit on sale, although the paperwork they put in for evidence was filled describing the "sale" with the words "experimental and trial".  An experiment is, of course, the major exemption for the one year limit on sale.

Finally the defendants have found a new issue du jour.  The judge rules that the Defendants do not have to list at this time, a specific amount to describe what is "substantially free of oil"  - so of course the defendants use a drawing in the patent to deduct what it does not say:  That you have to take out 95% of the oil to infringe a GreenShift patent - not 94.4%.  It has to be 95%.  Really?  Are they really taking this new argument in the 11th hour because it is their strongest?  Or their strongest argument left in the pile?