Monday, January 14, 2019

House Keeping

01/10/201991ORDER filed. The motions to extend [82] and to reform the caption [84] are granted. The revised official caption is reflected in the order. Service: 01/10/2019 by clerk. [577443] [NEL] [Entered: 01/10/2019 05:27 PM]
01/10/201992Amended Entry of appearance for Spiro Bereveskos as principal counsel for Appellee Iroquois Bio-Energy Company, LLC. Service: 01/10/2019 by email. [577450] [16-2231] [Spiro Bereveskos] [Entered: 01/10/2019 05:36 PM]
01/10/201993Amended Entry of appearance for Lisa A. Hiday as of counsel for Appellee Iroquois Bio-Energy Company, LLC. Service: 01/10/2019 by email. [577453] [16-2231] [Spiro Bereveskos] [Entered: 01/10/2019 05:49 PM]
01/10/201994Amended Entry of appearance for Lisa A. Hiday as of counsel for Appellee Iroquois Bio-Energy Company, LLC. Service: 01/10/2019 by email. [577455] [16-2231] [Lisa Hiday] [Entered: 01/10/2019 05:55 PM]

SkunK

10 comments:

Slashnuts said...

The July 31 Letter & Plumtree...

The defendants will lose the appeal. It all boils down to the July 31 letter.

Defendants claim the now patented methods were practiced on June 10 and July 10 of 2003. In 2003, the inventors were trying to determine if they should centrifuge before or after the evaporation process.

It is true that during these tests a small bench top centrifuge separated oil from syrup, however, the test centrifuge quickly clogged. To practice the methods, every claim of the patent must have been practiced.

During these tests, the de-oiled concentrate was not dried as required and recovery/concentrating were not performed in a continuous fashion because the centrifuge quickly clogged. Defendants claims are false since all claims of the method patents were not performed. (Sorry Agri-Energy, a lemonade pitcher of syrup carried over to a table top is not exactly a continuous industrial process)

14. The method of claim 10, wherein the recovering and concentrating steps are performed in a continuous fashion.

15. The method of claim 10, further including the step of drying the concentrate after the step of recovering the oil.

http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-bool.html&r=1&f=G&l=50&co1=AND&d=PTXT&s1=7601858.PN.&OS=PN/7601858&RS=PN/7601858

Since the centrifuge quickly clogged, more testing was needed to determine if it would work in an actual ethanol plant. This is why Barlage stated, "Further testing is needed to determine the best methods".

This is where the July 31 letter, an offer to test, came into play. The inventors had the absolute right to test it in an actual ethanol plant, in real conditions, in a continuous fashion. We all know these systems cost millions so the price tag of just $400k in the letter clearly indicates an ambition to test, not to make money.

The District Court had it right, there was an offer to deliver a system. However, it erred due to the fact these are method
patents. There was no offer to sell the methods. There was no offer to perform the methods. The offer was to sell them equipment. The same type of equipment that already existed in Agri-Energy's plant.

This is where the defendants are going to lose this case, Plumtree.

Plumtree requires an offer must be made to perform the methods. It's undisputed, this simply didn't happen. How could it when "more testing was needed to determine the best methods"? The only thing we would have been required to do, had Agri-Energy accepted the offer, is deliver the device. In Armco Corp VS Align Tech, it was determined that "mere delivery of a device that is capable of performing a method is not performance of the method itself."
Therefore, there was no offer to sell the patented method. They offered to sell the equipment dirt cheap for the purpose of getting in there and proving that it works.

It just wasn't clear, without further testing, if this would work as intended. Even Agri-Energy wasn't convinced. In 2004, they practiced Prevost by centrifuging thin stillage before the evaporators. For the record, when a patent application clearly states 15% water, repeatedly, it doesn't mean the exact opposite, ie 15% fat just to suit your needs. Furthermore, 15% fat(..err I mean water..) is clearly erroneous. Prevost characterized it as a free flowing powder which is impossible if it was 85% water. It makes more sense to attempt a solvent extraction process on a free flowing powder with < 15% water.

More to come..
Good Luck To All!$!$

nobody123789 said...

Obviously Attis agrees as they wagered $18 million on this outcome, obviously C&C agrees as they wagered many millions to get substantially more on contingency, and most importantly the Federal Circuit agrees as they have addressed a similar issue in July of 2016:
" We conclude that, to be “on sale” under § 102(b), a product must be the subject of a commercial sale or offer for sale
, and that a commercial sale is one that bears the general hallmarks of a sale pursuant to Section of the Uniform Commercial Code. We conclude, moreover, that no such invalidating commercial sale occurred in this case. We, therefore, affirm the district court’s judgment that the transactions at issue did not render the asserted claims of U.S. Patent Nos. 7,582,727 (“the ’727 patent”) and 7,598,343 (“the ’343
patent”), owned by Plaintiff-Appellant The Medicines Company (“MedCo”), invalid under § 102(b)."

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1469.Opinion.7-7-2016.1.PDF

Significantly, the bad guys know this as well. I sincerely hope that after all this time that they (the good guys) turn a deaf ear to their entreaties to settle. Please! Hang in there for the few more months it will take to obtain the adjudication and its industry-wide implications.

Anonymous said...

It doesn't matter what anyone feels or thinks but the judge...

nobody123789 said...

It is not A judge it is a panel of judges; one of which heard the above case.

Anonymous said...

So maybe, just maybe, all the new attorney's the Appellee Iroquois is bringing in are settlement experts?

Anonymous said...

Spiro Bereveskos
PARTNER
For over 35 years, Spiro has earned a reputation as an aggressive, trial and appellate patent and intellectual property litigator. He has
successfully resolved cases involving hundreds of millions of dollars and is known for seeking the most efficient and cost effective path
to either an amicable settlement or a win on the merits. Since 2006, Spiro has continuously been selected for inclusion in Indiana
Super LawyersĂ‚®. He is Chair of the firm's Intellectual Property Trial and Litigation Practice Group.

History shows several settlements prior to heading to trial...

Anonymous said...

PARTNER
Lisa Hiday is a registered patent attorney with more than 20 years of experience in patent, trademark, and copyright infringement matters, as
well as appellate practice. She is adept at litigating patent disputes across a wide range of industries, including industrial
manufacturing, medical devices, pharmaceutical technologies, packaging, and computerized systems services. She has also handled
cases involving trademark infringement in various industries, as well as copyright infringement relating to books, architectural plans,
and choreography.
Prior to practicing law in the private sector, Lisa taught aircraft and spacecraft design as a visiting assistant professor at Purdue
University, School of Aeronautical & Astronautical Engineering. Additionally, while at Purdue University, she implemented outreach
efforts as a part of NASA's Indiana Space Grant Consortium.
Lisa earned her Ph.D. from Purdue University, where she specialized in orbital mechanics, specifically the optimization of transfer
trajectories in the elliptic, restricted, three-body problem.

Anonymous said...

Two notices of appearance enter for Hiday… Looks like Spiro entered Hiday and Hiday entered Hiday… What's the dillio???

nobody123789 said...

Another small victory on the way to BIG ONE?

ORDER filed. "The motion [83] is granted. The appellants may file a combined response brief of GS CleanTech and reply brief of GS CleanTech and GreenShift up to 14,000 words" with no further restrictions on the allocation of words. (Per Curiam). Service: 01/17/2019 by clerk. [579010] [LS] [Entered: 01/17/2019 02:56 PM]

Anonymous said...

http://www.sunocolp.com/news-releases/news-releases-details/2019/Sunoco-LP-Announces-Fuel-Distribution-Acquisitions-and-Strategic-Divestiture-of-its-Ethanol-Facility/default.aspx

 
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