Synopsis

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. 

Anonymous
December 3, 2019 at 3:17 PM

SkunK