Friday, February 1, 2013

Strategic Victory . . . In My Opinion . . .

In my humble opinion the court's ruling found in the previous blog - methodically chews up and spits out the defendant's best arguments.  As was the case of the first claim construction, it is was difficult to find even the occasional crumb that fell in the direction of the defendants. 

As a long time investor, I have always worn my über-GreenShift bias on my sleeve.  However, I would be interested in which argument (left standing) that any defendant can imagine any court using to eventually rule in their behalf at trial?  (The Boards of Directors of the litigants owe it to their stakeholders to simply read the last ruling and then ask that question of their lawyers.)

The patent claims are now constructed in a very broad and inclusive manner.  The limitations that the defendants argued for, that would have made infringement difficult to prove, have been swept aside by this court as a matter of law.  Although the actual performance numbers of the defendant's plants have been blacked out of the filings, all claimed innocence by way of arguments now failed. 

It appears difficult to continue to claim non-infringement with a straight face. Their re-filings for summary judgement will be telling.  Will they just go through the motions and ignore the obvious?  Will they simply try to re argue the decision the court has already made?  I suggest that course will not amuse the court and will signal the beginning of the end.  With this claim constructions they are left with little defense.  Rather than a defense of infringement, their best option seems to be to create a diversionary cloud of dust around the facts by an attack on the court's rulings, the patent office's findings or the inventors' integrity.  Wait - they already did each!  No dry powder left? . . .  In any case their next move should prove telling.

If this is the case, in order to win non-infringement, the defendants need for this court's claim construction to be thrown out on appeal.  I do not see an argument by the defense that the court has not already dismantled that could form the core of an appeal.  Sure, anything can be appealed, but an appeal is based on the evidence already presented.  You cannot on appeal, pull a rabbit out of your hat - unless that rabbit had already been formally introduced.   Yes, an appeal will cause a delay to the inevitable.  And if delay is the goal then an appeal is the deal. 

Just to review the course ahead as I understand it:  The federal court here does claim construction and discovery and summary judgement.  If things go past the summary judgement phase (and with the tone of this last decision it is not entirely clear that it will) the cases are then sent back to the original jurisdictions for trial based on the common claim construction and discovery.  The individual trials then basically decide if that particular defendant - based on information about the defendant's actions - compared to the claim construction - constitute infringement.  If all defendants violated (or did not violate) the patents as the claims are now constructed -  then the courts should all decide the same way. 

SkunK

As observers have noted, court victories do not dictate or even (necessarily) affect short term stock price.  It should go without saying that I do believe that the results of this case will eventually have a huge effect on the PPS (one way or the other). 



15 comments:

nobody12378 said...

Thank you Skunk. You certainly cannot be viewed as a detractor of GERS. You have stated clearly, what I have tried to convey over the many months. There will NOT be ONE court victory required, there will need to be many. There will not be ONE swipe of the sword of justice, there will need to be many. And as you said "if delay is the goal then an appeal is the deal". But not one appeal many appeals out of each jurisdiction to the IP Appellate Court in DC. After that closure (an injunction may be stayed until appeals are finished as well), assuming that all appeals are lost by the defendants (and that still is an assumption), there will be the legal wrangling and more time to execute the award order. As of last June several GERS' principals were expecting the delay tactic to be employed. I believe that you have also accurately stated that as goes the litigation so goes our investment, our gambit, if you will. In my opinion unless business picks up dramatically, independent of court rulings, dilution will continue unabated until the monetary award allows GERS to pay off its debts. Even new financing will not change that.

Therefore, Skunk, you have clearly stated that we are many months away from turning this around or as you have stated: "It should go without saying that I do believe that the results of this case will eventually have a huge effect on the PPS (one way or the other). "

Nobody awaits vitriolic responses to this verified thesis from the Cadets unwilling to accept the inevitable.

Anonymous said...

well ok then.

i agree with skunk. their best defense was manufactured {a rabbit out of the hat) and shot down. everyone knows the other defenses they have argued (worthless too).

i disagree with nobuddy to the extend multiple trials and appeals are inevitable for the simple reason that summary judgment(s) preclude trial(s) and that possibility is on the horizon.

whatever.


nobody12378 said...

Please do some reading before taking such positions, you are embarrassing yourself.

http://research.lawyers.com/Summary-Judgment-Motion.html

See section entitled "Appealability".

Thank you.

Anonymous said...

"Nobody awaits vitriolic responses to this verified thesis from the Cadets unwilling to accept the inevitable."

What a narccisistic megalomaniac!

nobody12378 said...

There is one, how many more?

Anonymous said...

Nice spin Mr. Skunk.

Anonymous said...

WE WON
WE WON
WE WON
WE WON

Anonymous said...

The news will spread and the pps rises as folks learn of this ruling.

Leibert

Anonymous said...

WE WON
WE WON
WE WON
WE WON
WE WON
WE WON

nobody12378 said...

Unrelenting punishment of GERS' common shareholders continues as the dilution wipes out any gains.

Anonymous said...

GREEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEN

nobodyl2378 said...
This comment has been removed by the author.
nobody 12378 said...
This comment has been removed by the author.
nobody12378 said...
This comment has been removed by the author.
nobody12378 said...

i <3 gers
i <3 gers
i <3 gers
i <3 gers
i <3 gers
i <3 gers
i <3 gers
i <3 gers
i <3 gers
i <3 gers
i <3 gers
i <3 gers

 
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