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
A finding of fraud, notwithstanding the lack of intent, along with the finding of an on-sale bar invalidating the patents, are only applicable if you assume (a) that the inventions were in fact on sale, i.e., that the invention was ready for patenting after completion of the failed 2003 bench test, (b) that the inventive method was disclosed in the offer made to Agri-Energy, and (c) that the inventive method worked for its intended purpose in an ethanol plant without testing the same in an ethanol plant. Judge McKinney erroneously leapt to that determination despite the presumption of patent validity and the record before him demonstrating that these issues were materially disputed on summary judgment. If you assume that the Federal Circuit finds that he was right, and—as the defendants argue—that Cantor Coluburn and/or the inventors must have known that during the prosecution of the patents, the Court will then be deciding whether Judge McKinney was also correct in his apparent finding that Cantor Colburn and/or the inventors had a specific intent to mislead the patent office.
ReplyDeleteThe technical sufficiency of the bench test is the logical predicate for everything. Was it sufficient to enable the invention? Did it tell us anything meaningful about placement, sizing, power, temperature, time, pH, viscosity, or throughput? Was it even representative when the sample sat, settled out, and cooled before the bench test? Did it tell us how the unique and variable chemistry of corn ethanol stillage contributed to or detracted from emulsion formation downstream of the still? Or the unique and variable physical and other live operating conditions under which emulsions form or break in real time at scale as the stillage is pumped at hundreds of gallons per minute? Is there any inference, in spite of our foresight and experience in other applications, under which it would have been reasonable for us to believe that we needed a live test before believing we were ready for patenting? If this were about cold fusion, and the 2003 bench test sparked and fizzled out, then we wouldn’t be here today. The defendants attorneys did a great job by confusing the court on that below, tainting the record here.
To me, this is going to come down to that predicate. If they believe our arguments, or give us the requisite benefit of the doubt, then we’re headed back down on remand. If they believe Judge McKinney or the defendants, then we will be filing a writ, amongst other things ...
The justices smell a rat... I think the on-sale issue and the mumbo jumbo about the offer letter and the missing e-mails doesn't sit well with the judges...
ReplyDeleteRegarding the synopsis, it seems to me that our side is unhappy with how the Judges are viewing the facts. Yet our attorneys laid out the facts, as we see them, completely in their written briefs. I would think that the judges have read all that has been submitted and do not agree with our viewpoint. In fact, Judge Walloch appears to vociferously disagree. It does not appear that Greenshift is going to prevail in this lawsuit.
ReplyDeleteHaving said that, my question is: If Greenshift loses the appeal, does the company exist as a going concern 12 months from now or is it BK?
Question here, do we need to wait until the judges render their decision or can we start our malpractice lawsuit against Cantore & Colburn now?
ReplyDeleteI am not a lawyer so I am looking at this from a common sense point of view and here’s how I see it. The whole issue here is whether there was patent protection at or around the time of the bench test. Our team says that it was too early to apply for the patent because the early test failed and so we didn’t know for certain if the process actually worked. So, we did not apply for a patent at that time. I’m guessing that Kevin didn’t make that decision on his own but rather at the advice of his patent lawyer who I believe was C&C at that time.
Perhaps a better approach would have been to apply for the patent and let the USPTO tell us that the invention is not “ripe” for a patent at the time and to apply at a later date when the machine was fully functional. At least we would have had our foot in the patent door. As a matter of fact this whole approach has never made sense to me. We didn’t apply for a patent because we hadn’t proven yet that the machine and process would work at full scale. Correct me if I am wrong but don’t people apply for and receive patents for all kinds of “ideas” that they haven’t even made a prototype of? Is every patent applied for only after the full scale version is up and running?
I surmise that C&C told Kevin that he shouldn’t apply for a patent at the time and that he should wait until they could prove full scale viability. Meanwhile they didn’t realize they were working with a dirt bag scumball, DVG. As corrupt and slimey as he is, he has been around patents for a long time. I’m guessing DVG saw the decision by C&C to not protect the device and process at the time and viewed it as they had left the back door wide open. And being the scumball that he is he walked right in and took Kevin’s invention right off of the kitchen table and said thank you very much!!
And now 90% of the ethanol industry is using our invention and making hundreds of millions of dollars off of it. All because we followed C&C's advice and did NOT protect our patent when, obviously, we should have.
Sounds like a major case of malpractice to me. They cost us millions of dollars, it’s time to go after C&C.
I have been told by a former federal prosecutor that the main reason IP firms agree to take a case on contingency is that this fee arrangement is accompanied by an agreement that holds them harmless on potential malpractice issues.
ReplyDeleteI have no idea if such an agreement IS in place; only KK can answer that. However, it appears to me that the most fruitful activities for the common shareholders lies on the path of debt resolution, filings brought up-to-date, and revenue from the other frequently referenced ventures.
For many years I have stated the importance of the court awarded damages from the patent impingement litigation. I now believe that they are in our rear-view mirror as they will not materialize. Yet, we still have their claim for attorney fees ($ millions) that will surely follow when the verdict is finalized. Based on the rulings of Judge McKinney and the strident language of the Federal Circuit judge Wallach; they will have a good chance of prevailing on these as well.
You are also missing an incredibly important point -- the USPTO clearly stated that the bench activities did NOT toll the on-sale bar. Whoever decided that patenting was not necessary was, in the eyes of the experts the USPTO, correct. It would seem hard to make a claim of malpractice with this fully documented in the record.
ReplyDeleteDefendants: look at the monkey; if it doesn’t fit, you must acquit.
ReplyDeleteCleanTech: OK, bring it.
Judge McKinney: don’t bother, I’m not ruling against the community that I grew up in, therefore it must fit, therefore I will not acquit, therefore the defendants’ arguments must be factual. Therefore go pound. And, since appeal is inevitable, I’ll give the Federal Circuit some sound bites to chew on. Good luck with those. I’ll see you on the other side if you last that long. Death is your best option.
CleanTech: we’re not going to stop. Ever.
ReplyDeleteWell, that was well reasoned!
ReplyDelete