GreenShift Memo of Law

See Here

SkunK

GPRE and Corn Oil

Revenues increased $8.8 million for the quarter ended June 30, 2012 compared to the same period in 2011, primarily due to higher revenues in the corn oil production and agribusiness segments. During the quarter ended June 30, 2012, Green Plains sold 38.6 million pounds of corn oil production compared to 21.5 million pounds in the same period of 2011. p.3

Corn Oil Production Segment
Green Plains initiated corn oil production in the fourth quarter of 2010. By September 30, 2011, corn oil extraction equipment was deployed at all nine of the Company’s ethanol plants. Revenues in the corn oil production segment increased by $5.0 million for the quarter ended June 30, 2012 compared to the same period in the prior year. During the quarter ended June 30, 2012, Green Plains sold 38.6 million pounds of corn oil compared to 21.5 million pounds in the same period of 2011. p.5

Crude oil revenue in the second quarter of 2012 was $17.5 million. p.6
SEE HERE

SkunK
(My math has corn oil @ .453cents/pound in the 2nd quarter.)

Patent Update

GreenShift has 5 issued COES patents HERE (first one is not oil extraction).  The sixth COES application has been given a Notice of Allowance.  GreenShift has withdrawn this sixth COES patent just before its issue and has submitted a lot of legal and other material for further review.  GreenShift has NOT withdrawn the patent.  GreenShift HAS withdrawn the patent application for issue at this time - so that additional material can be recorded in the patent's administrative history.  GreenShift has done this before to get a patent that is better inoculated against future challenge - because it will have withstood the prior art and all the up to date information about the litigation.

List Prior Art HERE

Cantrell Notice See Here

SkunK

Misc Reading

Statement

Order

SkunK

GreenShift Fighting to Advance, Protect its Corn Oil Extraction Technology

see Here

SkunK

PreTrial Conference in Less than 5 Days

See Here
Order Setting Agenda for Pretrial Conference
This case is set for a pretrial conference on August 1, 2012, at 1:30 p.m., in Room 270, United States Courthouse, 46 East Ohio Street, Indianapolis, Indiana, before Magistrate Judge Debra McVicker Lynch. The purpose of the conference is to discuss:

1. The status of discovery;
2. Issues related to expert witnesses, including the status of expert discovery, if any;
3. Whether any additional claims are anticipated and whether a deadline for stating is appropriate;
4. Whether further motions for summary judgment are anticipated;
5. The timing of remanding cases to the transferor courts, if necessary;
6. Whether any case management deadlines should be set; and
7. The possibility for settlement.

The parties should confer and file a notice with any additional proposed topics for discussion at the pretrial conference by July 31, 2012, at noon. Defendants with similar interests may appear by a single attorney designated to act on their behalf at the conference. If any attorney or client representative would like to listen to the conference by telephone, arrangements may be made by contacting Judge Lynch’s courtroom deputy  . . .
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SkunK

GERS Answers ICM and Others

See HERE

The ICM Defendants’ oil stream coming from its centrifuge is '''''''''''''' '''''''''' ''''' '''''''''''''' '''''''''''' pure oil and their syrup stream is '''''''''' ''''''''''' free of oil. (CleanTech Fact ¶ 4-23)

The undisputed test results unequivocally demonstrate that the ICM Defendants perform the claimed method of recovering oil so that one stream coming from the centrifuge is “substantially oil” while the other stream is “substantially free of oil.”

SkunK
8 Pages longer than previous blog post.
My underline and bold above

GreenShift Answers Substantially

GreenShift's Argument See Here

"The reference in Figure 2 to that example showing “95% recovery” is a reference - not to recovery of total oil - but recovery of the portion of the oil that was separated in the centrifuge."

"It follows from the specification of the patents-in-suit and the prosecution history that the comment below the “Oil Recovered” box in Figure 2 in the Provisional Application (which states “[w]e cover [sic] the majority of the oil. In this example we show 95% recovery”) is a reference to recovery of the portion of oil that was unbound during the evaporation process and targeted for separation and recovery by the centrifuge rather than the total oil as argued by Iroquois. (Ex.1, ¶ 13 Winsness Declaration)"
Dave Winsness statement on the 95% Here

SkunK

ICM can Amend

ICM can amend it's filing to include '517
SEE HERE

SkunK

Adkins OK

Court Approves Adkin's Extension HERE

SkunK

Adkins Extension

Adkins asks for an extension HERE with GreenShift's permission.  I have said how important I think the '037 patent is to the overall outcome here.  It will be interesting to start reading what the legal beagles think.

SkunK

Lookie the ears on this one!

August EPM is out

Ethanol Producer Magazine is out.  Some corn oil news below:
6. ICM Inc. has been issued a U.S. patent for its Advanced Oil Separation System, which employs both mechanical and chemical separation to increase the volume of non-food-grade oil recovered from an ethanol plant’s process.  . . .  The systems have been installed at nine ethanol plants, with seven more installations scheduled to be complete by the end of the year.

SEE rest of this section HERE

Digital Magazine copy HERE

SkunK

Corn Crop on Verge

Hot, Drought HERE

SkunK

ICM Joins

ICM joins request to add '517 HERE

SkunK

When this started in Oct 2009 ICM seemed to lead the defense . . . 

"Defendants asserted additional factual bases for adding the ‘517 patent which were not available to ICM at the time of its earlier motion."

I am sure they are all on the same team, but the ICM quote above hardly projects its leadership and hints at lack of sharing information among defendant law firms. 

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?

Fashback Markman

You do not have to depend on rumor about what was said at the Markman Hearing - We have the word-for-word transcript.  This is very insightful about what the court is thinking.  I agree with the post below that we have quite a mess here - Yet I believe it started with blatant reverse engineering, followed with  patent infringement and was compounded by indemnification - who's sole purpose was to encourage industry wide infringement by lessening the risks inherent in unlawful commercial activity.  A frigging mess indeed.

SEE HERE

SkunK

(Reader comment/question?)

"It report by some that it  was actually voiced by the judge during the markman hearing.  She deferred ruling it till the trial.   You might argue that we have idea what the court is thinking bit who knows...what a fricking mess."

Defendant's Argument

See Here

SkunK

More Pages +

Try this new link See Here

The Court agrees that avoiding eight largely duplicative briefs is a “compelling” reason under Local Rule 7.1(c) to allow joint briefing in excess of the page limit and GRANTS Defendants’ motion [masterdkt. no. 365].

Having reviewed both the ‘858 Patent, the terms of which have already been constructed, and the ‘516
Patent, the Court notes that there do not appear to be any new terms in the claims of the ‘516 Patent in need of construction. Therefore, at this time, the Court is not inclined to delay dispositive motions in this case in order to undergo more claim construction briefing and argument.

Finally, the Court notes that in its Response, CleanTech requests a status conference. The Court agrees that it would be wise to conduct a status conference at this time and, therefore, SETS this matter for status conference before Magistrate Judge Debra McVicker Lynch on August 1, 2012, at 1:30 p.m., in Room 270, United States Courthouse, 46 East Ohio Street, Indianapolis, Indiana.

New link Lincolnway Here
SkunK

Mo' Litigation Links

Bushmill
Al-Corn
Procedural Order:  Defendants allowed to Exceed Page limit. (Implied GreenShift can also in its reply)
Request Seal
United

SkunK