| 1/27/2019 | 162 | 6 paper copies of the Corrected Opening Response Brief with Supplemental Appendix [155] received from Appellees ACE Ethanol, LLC, Aemetis Advanced Fuels Keyes, Inc., Aemetis, Inc., Al-Corn Clean Fuel, LLC, Big River Resources Galva, LLC, Big River Resources West Burlington, LLC, Blue Flint Ethanol LLC, Bushmills Ethanol, Inc., Cardinal Ethanol, LLC, Chippewa Valley Ethanol Company, LLP, Flottweg Separation Technology, Inc., GEA Mechanical Equipment US, Inc., Guardian Energy, LLC, Heartland Corn Products, Homeland Energy Solutions, LLC, ICM, Inc., Iroquois Bio-Energy Company, LLC, Lincolnland Agri-Energy, LLC, Lincolnway Energy, LLC, Little Sioux Corn Processors, LLLP, Pacific Ethanol Magic Valley LLC, Pacific Ethanol Stockton, Pacific Ethanol, Inc., Southwest Iowa Renewable Energy, LLC, United Wisconsin Grain Producers, LLC, David J. Vander Griend and Western New York Energy, LLC. [652785] [CJF] [Entered: 11/27/2019 11:53 AM] This is a response to last Friday's request. SkunK |
Wednesday, November 27, 2019
Paper Copies Arrive
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13 comments:
Greenshift Corp. (PN) (GERS) hit an upwards quarterly price breakout.
4 days ago
On 2500 shares.
Okay, LOL... Was comment #1 Mr Kreisler???
What. No.
Can someone please post a link to the recording of today's proceedings?
Sorry, all reporters on the eastern seaboard will be at the clown show on Capitol Hill.
From Courtroom 402,717 Madison Place, Washington DC, Justices Jimmie V. Reyna, Evan J. Wallach, and Todd M. Hughes presiding.
Steven Pokilnow presenting.
Mr. Pokilnow was less than a minute into his presentation when Judge Evan J Wallach interrupted him. From there it went downhill. Judge Wallach focused entirely on the issue of the on sale bar, his belief that C&C conducted representational fraud in misrepresenting this issue. He even asked out loud if C&C had been referred to the Bar Association for discipline related to this behavior.
Mr. Pokilnow did not have a chance to describe C&C’s investigation into the issue of bench testing documentation. He was not able to bring to the justices’ attention the documentation that the USPTO concurred with C&C that the “bench testing” correspondence did not breach the on sale bar.
In summary, Justice Wallach stated that the record was ripe with documentation of representational fraud. The substantive issues did not get addressed; the entire hearing seemed focused on C&C conduct.
The defendants’ case is premised on an early ruling by the district court that a 2003 bench test demonstrated that the invention was ready for patenting; and, that our prosecution attorneys committed fraud by failing to submit the 2003 bench test results and other documents referencing inventive activities from 2003 in correspondence with the patent office.
The 2003 bench test failed. The centrifuge plugged up. The test was also performed on the equivalent of a bottle of ‘cold vinaigrette,’ far removed from the firehose of ‘hot salad dressing’ and other real world conditions under which concentrated thin stillage exists prior to separation and recovery. Yes, it is true that the inventors had an idea and conceptual vision for what needed to be done - as seen in the speculative drawing that they produced in 2003, but that was just foresight and experimentation was needed to confirm that their idea would work. Nobody had ever recovered oil from concentrated corn ethanol stillage before. The invention was not enabled and ready for patenting until and unless a subsequent test was conducted in an ethanol plant to confirm the parameters under which the process could work. That was the inventors’ belief at the time, that was the belief of our prosecution attorneys in preparing their filings with the patent office, and I would testify to that effect today. Those are the facts. They have never been presented to a jury.
The defendants’ fraud claim requires defendants’ claims to be simply taken as true, notwithstanding the lack of a jury trial - i.e., that the 2003 bench test was sufficient; that the 2003 letter was not sent in pursuit of an experimental use to confirm technical viability; and that the failed 2003 bench test and 2003 letter were therefore directly relevant to patentability. We do not believe any of that is true. Not then. Not now.
The court focused its questions on these points earlier today. They wanted our response as to how our former prosecution attorneys did not commit fraud in their disclosures to the patent office. Our attorney responded that there can be no fraud without specific intent to mislead the patent office, and that specific intent was not established by the record.
Our objective on appeal was to solicit a remand for jury trial on these very issues, and most importantly on the genuine issues of material fact which were ignored at the district court level involving the failed 2003 bench test and 2003 letter, among others. It’s too early to say if we achieved that objective today, but we are in the right.
We have delivered tremendous value to the ethanol industry. More than 90% of the industry uses processes covered by our patents today to displace more than 20 million barrels of fossil fuel and infuse more than $500 million per year of additional income into America’s rural communities. Such amounts equate to a total savings of more than 250 million barrels of fossil fuels and more than $5 billion in additional profit for the industry since inception. No known technology or process has come close to replicating those results for the industry. We will continue to vigorously pursue our rights regardless of today’s outcome.
I have been very vocal over the past few years that this was going to be a key issue and got shot down repeatedly by slashnuts over and over again. It seems like the concerns I have had are well warranted after reading this report.
Question, here it is December 2019, have we ever updated our filings yet?
It was unfortunate that GERS' summary of the issue that the justice misunderstood was not driven home in a salient form during the oral argument:
"We're also surprised by the result because, in connection with ongoing patent filings, the USPTO was provided with the court's opinion invalidating the Patents in Suit, including the documents upon which the court relied for its ruling, and a detailed discussion of the court's basis for invalidating the patents based on the 2003 bench test report, conceptual drawings, and other communications. The USPTO was also provided with the Defendants' summary judgment arguments. Nevertheless, the USPTO allowed CleanTech's patents after considering the very information that the court found to have been withheld from the USPTO, and upon which the bulk of the court's recent ruling was based.
In short, all of the information alleged to have been withheld from the USPTO by our inventors and attorneys was provided to and considered by the USPTO, including by the same examiner that reviewed and allowed the '858 patent, prior to issuance of several additional patents (U.S. Patent Nos. 9,212,334 (the "'334 patent"); 9,108,140 (the "'140 patent"); 9,320,990 (the "'990 patent"); and 9,012,668 (the "'668 patent" and, collectively, the "New Patents"). Significantly, the '334 patent is part of the same family of patents as the '858 patent.
We believe the USPTO's allowance of these New Patents after reviewing the court's summary judgment decision and other information further objectively supports our position that the allegedly "withheld" information was not material to patentability, and thus should not have been the basis for a finding of inequitable conduct."
The USPTO reconsideration is critical to defeating all the misunderstanding; without it a cascade of confusion was created by the defendants.
It sounds like nobody 123789 should have argued in front of the panel. Posting the argument here does no good. Was everything that I read in the above posts actually presented to the panel or is the above whining and belly ache?
Nobody123789 Did I read this before? Can you source it? Thanks
"We're also surprised by the result because, in connection with ongoing patent filings, the USPTO was provided with the court's opinion invalidating the Patents in Suit, including the documents upon which the court relied for its ruling, and a detailed discussion of the court's basis for invalidating the patents based on the 2003 bench test report, conceptual drawings, and other communications. The USPTO was also provided with the Defendants' summary judgment arguments. Nevertheless, the USPTO allowed CleanTech's patents after considering the very information that the court found to have been withheld from the USPTO, and upon which the bulk of the court's recent ruling was based.
In short, all of the information alleged to have been withheld from the USPTO by our inventors and attorneys was provided to and considered by the USPTO, including by the same examiner that reviewed and allowed the '858 patent, prior to issuance of several additional patents (U.S. Patent Nos. 9,212,334 (the "'334 patent"); 9,108,140 (the "'140 patent"); 9,320,990 (the "'990 patent"); and 9,012,668 (the "'668 patent" and, collectively, the "New Patents"). Significantly, the '334 patent is part of the same family of patents as the '858 patent.
We believe the USPTO's allowance of these New Patents after reviewing the court's summary judgment decision and other information further objectively supports our position that the allegedly "withheld" information was not material to patentability, and thus should not have been the basis for a finding of inequitable conduct."
https://www.greenshift.com/news/item/15
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