FILED from Appellees . . . CORRECTED RESPONSE BRIEF. Service: 12/18/2018 by email.
Table of contents about page 22
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Also - Motion approved to correct names. See Here
SkunK
Wednesday, December 19, 2018
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3 comments:
Do the appellees really believe that the USPTO will not be heard by the Federal Circuit?
It appears that all the words, all the high-priced billings, and all the time spent on this Greek Tragedy boil down to a three-sentence conclusion stated by the defendants-appellees.
"VI. CONCLUSION
Appellants agree with CleanTech that this is an extraordinary case, but not for the reason it cites. This case involved a brazen fraud on the PTO, and the assertion of invalid patents. For the foregoing reasons, the District Court’s judgment should be affirmed in its entirety."
McKinney did not allow the USPTO to stipulate that this was not the case, and in fact, the USPTO reaffirmed the validity of the patents after consideration of all the material entered in evidence by the defendants that supported their position. From what I read, the USPTO refutation of the defendant’s claims has not been entered into evidence.
It appears that the defendants-appellees are banking EVERTHING on the Federal Circuit not allowing this “new evidence”, not part of the lower court proceedings, into their (the appeal) proceedings. All of the defendant’s narrative behaves as if the USPTO position does not exist, and as of this time, it does not – procedurally.
Why are they banking everything on this? Simple, who would you believe that the USPTO was defrauded, the USPTO stipulating it was not, or the defendants claiming that it was?
This explains why GERS/C&C spent so much time in their filing detailing the judicial mistakes of McKinney to insure that his decision not to allow the USPTO position into evidence was, in itself, part of this appeal.
Once the claim of defrauding the USPTO is set aside then the question of the right of the inventor to bench test his technology without tolling the on-sale bar becomes central. However, this very court (the Federal Circuit) has already adjudicated this legal issue in July 2016. Their position is that an inventor has the right to bench test without tolling the on-sale bar.
Thus, defendants-appellees appear to be banking EVERTHING on the Federal Circuit not allowind the USPTO position/testimony into evidence. So, I ask again, Do the appellees really believe that the USPTO will not be heard by the Federal Circuit?
Good points all, however if I can quibble with anything I do not think the bench testing was the problem. It was taking the bench testing up to scale (that is still of course legal) that the for sale bar came into place. If everything that was bench tested worked the same when brought up to commercial scale then we would be living in a star trek world. Inventors have to be able to test at scale to validate and moderate operations before patenting. They cannot be expected to build their own Ethanol plant to do it. You find one that cooperates with you and you make it economically beneficial to them to allow you to modify their operation. (otherwise why would they do it?) This is not the same as selling the technology.
Everyone in every industry does this to bench test inventions at scale in the field. Does General Electric build their own hydroelectric dam to test new generators? Or do they sell new generators only tested at 1/500 to scale and then sell ones built to scale without testing them and logging thousands of hours in real conditions? Of course they build to scale and test in real conditions in someone else dam.
But then you would be stupid to try and steal a GE patent since they have the resources to grind you into dust.
After considering all of these "new" arguments by the defendants the USPTO again certificated the patents as valid. They know the patent laws as does the Federal Circuit -- in other words, I do not think that we are going to stumble on this point.
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