ICM Dismissed with "sparse" Wit and Prejudice

IV. CONCLUSION

The Court concludes that ICM Inc.’s claims in Count I under Kansas state law should be dismissed with prejudice; however, its claim under the Lanham Act may proceed. Further, ICM Inc.’s declaratory judgment claims in Count II are properly pled and the transferor court will retain jurisdiction over them on remand; however, it is in the interests of justice to transfer this proceeding to the Southern District of New York after the Multidistrict Litigation proceedings. GS CleanTech Corporation’s and GreenShift Corporation’s Motion to Dismiss is hereby 

GRANTED in part and DENIED in part as

set forth herein.

IT IS SO ORDERED this 27th day of February, 2013.

See Here

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After a quick read this looks like a GREAT victory. 

A little history:  This story is about Corn Oil Extraction (COES) Patents.  The first one in the industry was issued to GERS back on October 13, 2009.  On that same day ICM filed its original Complaint for Declaratory Judgment against GERS.  ICM filed the first lawsuit to try to steal the tactical advantage by striking the first blow and moving the game to its home turf.  But with patent now in hand - GreenShift sued producers and ICM and others for patent infringement.  GreenShift successfully moved all the cases to Federal MDL (Multi-District Litigation) for the pre-trial motions and the all important Claim Construction.  As things have moved along GreenShift has won major battles.  I consider these to be the two major claim constructions and the court's rejection of a key leg of defense:  Prevost. 

GreenShift now has four major COES patents listed on their site.  GERS' lists eight industry related patents on the Patent Office site.

The additional patents are one reason original complaints have been amended so many times.  ICM's original complaint was amended five times.  Each time before the Judge could rule on the previous complaint.

Fast Forward to today.  GreenShift finally got an answer to its motion to dismiss ICM's original complaint.  Now called "ICM’s Fifth Amended Complaint".  GreenShift's motion to dismiss was GRANTED in part and DENIED in part. 

The whole Kansas state law thing is dismissed with prejudice.  Done.  Over.

"Under this circumstance, the Court must agree with Plaintiffs that ICM has failed to state a claim of unfair competition under Kansas common law."

 

"Like with its Lanham Act claim, ICM’s claim that Plaintiffs tortuously interfered with its business and contractual relationships . . . is sparse

on connections between facts and the legal standards"

Wow.  Again, I am not a lawyer.  " . . .sparse on connections between facts and legal standards"  That's not an ICM lawyer atta-boy by the court - is it?    Yep, I got that zinger without a penny of law school tuition.

 

"ICM’s conclusory allegations fail to put Plaintiffs on notice of exactly how the GreenShift letters interfered with ICM’s contractual or prospective business relationships; therefore, those claims should be dismissed."

 

Also, remember the ICM filing using the Kansas Consumer Protection Act (“KCPA”)??  (You know, the family of laws that protect housewives from heavy thumbed butchers?)  After further review ICM just plain left that out of the last filing.  The court says ". . there is no claim under the KCPA in the 5th Am. Compl. since it appears ICM withdrew that claim in March 2010."

 

In other areas the court admits it is handcuffed.  It has to act as if the allegations by ICM are true.  "On a motion to dismiss, however, the Court must take the allegations in the complaint as true." 

The Cantrell one year offer prior to 17 August 2004 challenge can proceed:  "The contradictory statements by the patentees provided to the PTO are enough to infer the scienter element under the Federal Circuit standard enunciated in

Exergen".

On another "sparse" court comment:  "The Court concludes that, while sparse, Count 1 of ICM’s 5th Am. Compl. states a claim under the Lanham Act."
 

Another explanation from the court on it having to allow part of ICM's motion to proceed:  "The Court declines (GERS) Plaintiffs’ invitation to address the factual disputes raised in their motion, which is improper on a motion to dismiss where all allegations in the complaint are taken as true and draw all reasonable inferences in ICM’s favor."

It seems that the things that move forward by ICM are moved primarily on procedure - not necessarily merit - AND what is left is going to end up in New York - not Kansas as argued by ICM for the past 3+ years. 

 

Overall, I would be very surprised if ICM sees anything here that they will wish to draw attention to.  On the other hand, I would not be surprised if GreenShift included information in this court order in their next public release. 

 

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Joint Reply of Defendants

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Under Seal

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GERS Markman

SkunK