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.

See Here
Trouble with first linK?
Second Link Here

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!)

Al-Corn Reply

See Here
Why the fuss?  Why the rush?

". . . Al-Corn does not and has never heated the syrup post-evaporation. . ."  Notice they only make the heating claim post-evaporation.  Yet the '37 patent seems to patent the heating during a multi-stage evaporator used as a pre-treatment for corn oil extraction.  Remember some engineers make a living designing systems around patents.  Many producers seem to have used a multistage evaporator system to raise the temperature to design around a heat pretreatment and then divert the steam to oil extraction.  This might have been successful - until the '37 patent.  Although issued on 1 May 2012 - this patent was published on May 15, 2008 and it could be argued that these multi-stage evaporator pre-treatment systems were taught to the defendants by this patent application.  No wonder the rush to get dismissed before the patent is brought into the litigation. 

Al-Corn also wants the case dismissed:  " . . . on the basis that each of the claims asserted in those patents require that the post-processed syrup stream be “substantially free of oil,”.  The judge has already ruled that that term will be decided in court.  How can the defendants now decide what the term means and that they not infringing because of their own definition?   
**********************************
And See Here

Here are some quotes and comments:

"Plaintiff first opposes Defendants' motion on the bizarre basis that the filing of an oversize brief would violate the Court's rules on page limits. Obviously, compliance with the Court's rules would obviate the need for the motion in the first instance." 

What can I say here?  GreenShift opposes an exception to the size of a brief due to Al-Corn and the defendants wanting permission to violate the court's rules - rules that GreenShift has had to comply with.  Why is that bizarre? 

The next sentence seems to say that if Al-Corn and the other defendants would only comply with the court rules they would not have to motion for an exception?  Well, yes I AGREE!     I have to ask:  Who's side are they on?  Are they reading their prior motions?  Is it me?  lol.
That second sentence is TRUELY bizarre.  The "motion in the first instance" originated with the defendants!    Aren't they the ones asking to violate the court's rules on page limits?

"The addition of yet another patent to this case, if the Court deems it appropriate, is no reason to delay the submission of a motion which will dismiss Defendants and claims from this case or at the very least simplify the issues."

Lets see exactly what they are saying here:

"The addition of . . .  another patent to this case, . . is no reason to delay the submission of a motion which will dismiss Defendants . . . from this case . . ."

So now the defendant's seem to claim that a patent is not significant in a patent litigation case.  Allow me to repeat myself:  "A patent is not significant in a patent litigation case."  That certainly explains the mindset that created this lead off sentence:
 
"This case and Plaintiff's assertion of dubious patents are a blight on the ethanol industry that must be eliminated."

In my opinion, these quotes above, and the contempt for the patent system it reveals, explains more than anything I could say about why we are in multi-year litigation over a multi-patented process. 

SkunK

PS Blue Flint motion here

Add '37

GreenShift moves to add their newest COES patent to the case.
See Here

Legal Support Here

SkunK

Important Litigation Update

Two important quotes from this GreenShift Filing:

"CleanTech and the Amaizing entities have recently settled their lawsuit."

"In addition, the plaintiff has recently obtained issuance of another patent (U.S. Pat. No. 8,168,037 entitled “Method And Systems For Enhancing Oil Recovery From Ethanol Production Byproducts”) directed to the recovery of corn oil that it will seek leave to add to this action. That patent can and should be construed at the same time as the ‘516 Patent."See Here

SkunK

Here we have an admission of a settlement.  We also have GreenShift first notifing the court about the '37 patent approval.  We also have a road to getting that patent through the Markman process - done at the same time as '516.   

The '37 is important.  It seems claims 7, 11, 13, 15 effectively patent the use of the multistage evaporator as part of the extraction process.  Multi-stage evaporator is listed 14 times in the patent.  Loophole closed.

SkunK Insight:   Any defendants that can prove (in the GreenShift tests) that they do not use heat as a pre-treatment (except their multi-stage evaporator system) might be off the hook for back royalties - royalties would only start 1 May 2012 - the day the '37 patent was approved.  I really think this '37 patent closes the door on the heat pretreatment argument the defendants have been pushing.

GERS Extensions Granted

Here and HERE
and
Here and HERE

SkunK

Increasing Exports of DDGs

China Drops Investigation
See Here

"New" Ethanol Producer Mag Here

SkunK

Amaizing Settlement?

Amaizing Dismissal!  or HERE

SkunK

This is what the Center Ethanol Dismissal looked like.  Look Familiar?

Here is blog STIPULATION OF DISMISAL OF CENTER ETHANOL COMPANY, LLC   Shortly after this the Center Ethanol  settlement was announced. 

Remember "The Andersons" a GreenSift customer recently purchased Amaizing Ethanol.

GERS Extensions

GERS Request HERE

Another GERS Request HERE

SkunK

Hard News Outside the Industry

Mainstream Article about corn oil extraction HERE.

SkunK

E-15

Final hurdle removed.  Coming to a pump near you.
See Here

SkunK

Method II by EOY

ALPHARETTA, Ga.--(BUSINESS WIRE)-- GreenShift Corporation (OTCQB: GERS) today announced it plans to have its first method II oil recovery system operational by years end. This technology, which GreenShift refers to as COES II (corn oil extraction system, method II), is capable of recovering more than 1.33 pounds of corn oil per bushel of corn.

GreenShift invented and patented the backend corn oil extraction process widely used today in the industry. The successful commercialization of COES II is expected to widen the gap between GreenShift and its competitors. While many of GreenShift’s installations are currently recovering more than 0.8 pounds per bushel, the desire for additional recovery grows each day.

David Winsness, GreenShift’s Chief Technology Officer, said, “We recently attended the Fuel Ethanol Workshop in Minneapolis, MN and are pleased to report that Backend Corn Oil Extraction remains the fastest path to increased revenue per bushel of corn. The COES I technology has demonstrated its ability to increase the revenue at an ethanol production facility by more than 20 cents per bushel of corn and COES II is expected to further increase this value to more than 40 cents per bushel. These values are significant and provide a substantial competitive advantage to GreenShift licensees.

See HERE

Calgren is the ONLY known (to the SkunK) customer documented to be installing Method II - HERE

SkunK
Note: Investors may not be the first audience here.  Potential customers may be.

Defendants' Opposition to Motion to Strike

First there was GreenShift's Motion to Strike - which you saw before HERE.

NOW there is Defendants' Opposition to that motion to strike HERE

SkunK

Crown FEW Tour

"Crown Iron Works Co. has been operating a pilot-scale oil extraction facility in Minneapolis since 2003 and has been researching corn oil separation processes there since approximately 2004."

See Here

SkunK

FEC at FEW removes FFAs

". . . it is partnering in the development and commercialization of a new technology system designed to remove free fatty acids and moisture from corn oil."

See Here

SkunK

ICM AOS Patent

See Here

What may be also significant here is I see NO mention of the tricanter system on the ICM site.   EXCEPT for a link to a tricanter near the bottom of this page - which simply goes to the AOS information.

The AOS is designed and is more efficient as an add on (to any COES system).
SkunK

Defendant Request

45 page request

SkunK

Poet Insider

MORE HERE
SkunK

Gers Motion2Strike

Gers Motion to Strike

Memo to Strike 2

SkunK

New Patent

Its Official

See Here dtd 5 June 2012

SkunK

Open Filing (Redacted Portions)

Service

28 Page Filing

SkunK

More Argument that 95% is "substantially free".  They use the example in the diagrams. 

PS ( SkunK Insight:  It is an example - not the only example - just one example!)

Edeniq

Edeniq is installing Cellunators™ at the first of four Flint Hills plants. Edeniq’s OilPlus™ corn oil extraction process is also being deployed at one Flint Hills plant and plans call for two others. OilPlus™ combines mechanical and chemical treatments to improve corn oil recovery.
See Here

SkunK

FEC at FEW

80% of the industry will be extracting corn oil by the end of this year.
See Here

GERS Responds to MAX

SEE HERE

SkunK

I suspect the judge will rule within the next 30 days or so to dismiss the charges against GreenShift with prejudice in most, if not all parts of this case.  That's obviously just my opinion, but if anyone has read the various motions and still thinks anything will continue I would be happy to listen.

REX REports

Sales from corn oil production was $2.9 million in Q1’ 12 as One Earth and NuGen commenced corn oil production in January and March 2012, respectively.

In addition, we recently installed state-of-the-art corn oil extraction systems at our two consolidated facilities to optimize utilization and further diversify the offerings from our plants.

Effective December 1, 2011, reflecting its 10% interest in Big River Resources, LLC, (defendant) REX received a 10% interest in Big River Resources, Boyceville which operates a 55 mgy nameplate plant built by Fagen, Inc. with ICM, Inc. technology in Boyceville, WI.

See Here

SkunK