Wednesday, September 21, 2016

Case(s) Closed

Pacer shows Greenshift has all its legal cases closed as of 9/15/2016.  The next event I anticipate will be the filing of an appeal.

SkunK

25 comments:

nobody123789 said...

None too soon.

nobody123789 said...

One of the more interesting entries in the recently released Q is: "Next, Cantor Colburn LLP ("Cantor") and the Company entered into an amended agreement pursuant to which Cantor agreed to accept 15% of any recoveries from the Company's pending patent litigation in excess of $3.6 million per year in exchange for all services rendered to date and moving forward. The Company recognized an $8,433,388 gain on extinguishment of debt upon the write-off of all accrued legal fees."

Cantor Cloburn LLP (C & C) is a distinguished, experienced IP law firm with with complete and intimate knowledge of the legal facts in this litigation. http://www.cantorcolburn.com/. C & C has an extensive history of success before the United States Court of Appeals for the Federal Circuit where the appeal will be heard. The Federal Circuit Court which, as indicated in the Greenshift update of September 15th: "The United States Court of Appeals for the Federal Circuit ("the Federal Circuit") is the appeals court for all patent cases, and it is uniquely qualified to address the nuances of patent law that are the subject of this case." http://www.cafc.uscourts.gov/the-court/court-jurisdiction

Questions: Why would a firm with this standing and their detailed level of knowledge about this case, trade $8,433,388 for 15% of nothing ("any recoveries")? Why would they make this deal as the appeal is about to commence? With the potential size of the back royalties and penalties (possible treble damages) the court awarded damages could fiscally swamp the defendants requiring payback over a number of years -- is this the reason for the "PER YEAR" stipulation of this amended agreement? Are they that sure of the outcome? Probable answers point to: C & C is that sure of the outcome of the appeal.

Anonymous said...

Good Points all. Also C&C does business not because it has a distinguished office, but because of its distinguished reputation. I think they would appeal this latest insult to their reputation even if GERS folded up and blew away.(it will not) Remember the judge accused C&C also of dishonest action.

nobody123789 said...

A few years ago an IP attorney provided data to the I-Hub board documenting how frequently the Federal Circuit sided with the USPTO when the USPTO conflicted with the lower court? I do not remember the numbers but the Federal Circuit had historically sided with the USPTO more often than not. An example https://ipspotlight.com/2012/10/30/federal-circuit-uspto-can-overturn-patent-in-reexamination-even-after-a-court-refuses-to-do-so/

Anonymous said...

It may not even make the appeal stage. My guess it that the thieves may just be considering a settlement. Remember, this judge McKinney has had many of his decisions reversed on appeal, many! She ain't over yet boys. The glaring thing that keeps me going is that the USPTO awarded/upheld all the patents with the complete knowledge of what GERS says was bench testing and what the thieves claim was an offer to sell. How can the judge disregard the decision by the USPTO???

Anonymous said...

Something isn't right. uspto review of the so called "withheld info" resulted in another patent. Apparently, the uspto agrees with GS and doesn't believe: 1. the invention was reduced to practice in 2003. 2. that the withheld info was material. 3. that it was deceived. Conclusion: this judge either doesn't understand patent law and the right to testing, or he's on the payroll of the defendant's. Regardless, vindication on appeal looks very strong here.

Anonymous said...

Agree on all accounts! Judges decisions have a long history of being overturned. And if not, let's just do away with the entire USPTO all together.

nobody123789 said...

The data on the Federal Circuit frequently taking the USPTO position when it conflicts with the lower court, the positive re-evaluation by the USPTO of the patents that included the judge's findings, the prestige of C&C and the zero likelihood they are guilty of deception as claimed by Judge McKinney, and C&C agreeing to a yearly payment of proceeds from the case on a contingency basis are objective facts. Speculation driven by the desire of many to see GERS go down in flames because of the deserved distaste for and distrust of KK in the face of these facts is misguided. The frustration and anger is understandable -- $138,107,121 in "additional paid in capital" does speak volumes. That said, those that understand the difference between rooting for GERS and the opportunity that these facts portray for the future, limited to the only real issue at hand -- winning the appeal, may well still profit.

Big Easy said...

All that said, like real estate, the $$ is made on the buy. An appeal awaits. My dry powder will remain just that. Of course a settlement would upset my applecart, however me thinks the emotion between the parties keeps that a bridge too far. Things could easily take a year?

nobody123789 said...

I agree that a settlement is unlikely for the reason you state. I think a year is a reasonable estimate based on my limited digging into that question. If we could get a more learned opinion on that estimate it would be helpful. As for the "timing" question, one never knows what might ignite interest here; and maybe nothing at all -- ever.

Anonymous said...

All that being said, how is GERS's core business doing. Do they still have a reasonable revenue stream to carry them through?

I don't think a settlement is off the table. Even though the parties have a mutual distain for each other, especially KK and Vanderloot, the attorneys have a way of bringing parties together without the same emotions as the main cast of characters. Let's not forget there are a several companies involved that don't have the same animosities towards each other as KK and Vanderloot.

nobody123789 said...

I am told that one of the major strategies in these type of proceedings is : "delay, delay, followed by more delay", in the hope that the smaller company will go under and not be able to continue to prosecute its litigation. Therefore, the question you ask is reasonable and unanswerable by me. Early in the proceedings we learned that ICM had indemnified the other parties, but that indemnification would be voided if they settled. If those covenants are still in place I would not hold your breath until there is a settlement. Perhaps, and just perhaps C&C acceptance of contingency payment was a signal to all parties that GERS will have enough "to carry them through". Of course, GERS can and will continue to sell shares and dilute to add to its revenue.

nobody123789 said...

Skunk -- you obviously have access to Pacer. We eagerly await your information that the appeal has been filed. From the Federal Circuit web site:
"Notice to users: Effective April 16, 2012, the "New Cases Filed" list will no longer be updated. Effective May 17, 2012, the list will no longer be available.Information on new appeals is available through the court’s CM/ECF page in Pacer. To access this information, follow the CM/ECF link from this page. Click on Advanced Search to use the date range searching option for opened cases. A Pacer account is required for access."

nobody123789 said...

I think KK and GERS will need to massively dilute to pay the large bond that is going to be required for the appeal. http://suretybonds.uslegal.com/appeal-bond/

Anonymous said...

$.0003, +.0002 on 273,000,000 shares. Maybe ICM buys GERS and the whole thing goes away! That would solve everything, even the indemnity...

nobody123789 said...

Can't happen, KK controls 60% of commons through his non diluted preferred shares.

Anonymous said...

It can happen if he agrees to it... He must be exhausted with all this stuff... Starting with about 10 companies stealing the patents and surrounding him with thieves and bigger money.

nobody123789 said...

Sounds like you are somewhat close to the inner circle.

Big Easy said...

When they file an appeal you can bet it will come with a pr release. That is for certain.

nobody123789 said...

I am not as certain. I know for a fact as I was told by one of the principals, that C&C is controlling ALL external communication. This is one of the reasons why there has been a dearth of announcements and communications since the litigation began. For example, the shareholder newsletter which was released every year stopped abruptly after C&C took over. I am not faulting C&C, it is in the DNA of attorneys to attempt to control everything and the only thing that matters to them is winning the case. This is where I fault KK, he had a broader responsibility to shareholders and should have sought a middle ground that achieved C&C's end and still provided some support for the suffering shareholders.

I will add that KK could do something to benefit the folks that have kept this company and litigation alive over the years. IF they win the appeal KK should immediately release a PR describing the amount of potential court awarded damages, and that upon receipt of these funds GERS would be launching a massive share buy back. Can you imagine what would happen to the PPS (Tens to hundreds of millions of dollars in forth coming revenue - depending if treble damages are awarded, massive reduction in OS)?

Anonymous said...

Keep dreaming....these guys are done. Not the first nor will be the last to be tripped up by $$ greed. Best of luck to all.

Anonymous said...

There isn't an appeals court in the entire country that will not look hard at the positive decisions that the USPTO made on behalf of GERS. This Judge McKinley has had many decisions over turned and that has been detailed on this message board for the past few years. My concern is that if the appeal is won, the damages could bankrupt ICM and they would not be able to indemnify their partners. In that case, the fight would continue against all the remaining infringers and they would most likely settle. Let's keep and eye on their 8K's to see if they mention this appeal in their legal disclaimers and what they may a lot to pay for damages. That is if this even goes that far... With C and C fighting the good fight, and their compensation tied to any payments, I would expect a solid fight and or convincing settlement arguments.

nobody123789 said...

This is not just any appeals court but the Federal Circuit Court with specially trained IP attorneys as staff/law clerks and detailed judicial knowledge of patent law with a long history of siding with the USPTO when their findings conflict with the lower court's decisions.

The Federal Circuit is unique among the thirteen Circuit Courts of Appeals. It has nationwide jurisdiction in a variety of subject areas, including international trade, government contracts, patents, trademarks, certain money claims against the United States government, federal personnel, veterans' benefits, and public safety officers' benefits claims. Appeals to the court come from all federal district courts, the United States Court of Federal Claims, the United States Court of International Trade, and the United States Court of Appeals for Veterans Claims. The court also takes appeals of certain administrative agencies' decisions, including the United States Merit Systems Protection Board, the Boards of Contract Appeals, the Patent Trial and Appeal Board, and the Trademark Trial and Appeal Board. Decisions of the United States International Trade Commission, the Office of Compliance, an independent agency in the legislative branch, and the Government Accountability Office Personnel Appeals Board, and the Department of Justice Bureau of Justice Assistance also are reviewed by the court. The court's jurisdiction consists of administrative law cases (55%), intellectual property cases (31%), and cases involving money damages against the United States government (11%). The administrative law cases consist of personnel and veterans claims. Nearly all of the intellectual property cases involve patents. Suits for money damages against the United States government include government contract cases, tax refund appeals, unlawful takings, and civilian and military pay cases.

More http://www.cafc.uscourts.gov/the-court/court-jurisdiction

Anonymous said...

First thing we need is the file the appeal, if it hasn't been filed already... Not sure but is there a hearing and then another court date or does the appeal judge base his decision just off of briefs/replies?

Hopefully GERS has enough revenue coming in to weather this storm, no pun intended with Mathew bearing down!

nobody123789 said...

You need access to Pacer to know this. Hopefully, the Skunk who has access will keep us informed.

 
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