CONCLUSION
We have considered the parties’ other arguments and
each of the remaining issues raised on appeal and crossappeal and find them to be without merit. Accordingly, the
judgments below are
AFFIRMED
See Here
See Here
SkunK
Tuesday, March 3, 2020
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15 comments:
Legal incompetence from beginning to end.
It is ironic. Right now there’s a fat little thief popping a cork off of the most expensive champagne sold in Colwich KS and at the same time you have Kevin K and David W consoling each other that they are out hundreds of millions of dollars. And the ironic thing is that they all have the same people to thank - Cantor & Colburn.
When KS stole the intellectual information they had no idea about a sale bar. They just figured they could get away with it. Rob a bank and then hope the judge says the bank didn't have the right paperwork.
USPTO VS The Court Of Appeals decision...Plumtree
The difference between the USPTO and The Court Of Appeals decision is reason enough to file a Writ. Plumtree, GERS' primary defense wasn't even considered.
The USPTO took Plumtree into consideration and correctly ruled in our favor.
The Court Of Appeals refused to consider Plumtree simply because it wasn't mentioned in The District Court and therefor ineligible for review.
Quote:
CleanTech contends that the District Court misconstrued
the law by failing to apply Plumtree’s requirement that the
“challenger must prove that the patentee either: (i) ‘made
a commercial offer to perform the patented method[]’[;] or
(ii) ‘in fact performed the patented method for a promise of
future compensation.’” Appellant’s Br. 36. CleanTech,
however, did not make this argument before the District
Court and cited to Plumtree only once in its summary judg-
ment opposition and only for the proposition that the July 2003 Proposal was not invalidating because it “did not unambiguously require use of [CleanTech’s] patented methods[.]” J.A. 26364 (citing Plumtree, 473 F.3d at 1163).
Because we apply the law of the regional circuit as to pro-
cedural matters, see Info-Hold, Inc. v. Muzak LLC, 783 F.3d 1365, 1371 (Fed. Cir. 2015), here the Seventh Circuit,
we will not decide an issue for the first time on appeal, see
Scheurer v. Fromm Family Foods LLC, 863 F.3d 748, 755
(7th Cir. 2017) (“The well-established rule in th[e Seventh]
Circuit is that a plaintiff waives the right to argue an issue
on appeal if she fails to raise the issue before a lower court.”
File the Writ and get this reversed upon consideration of Plumtree.
Good Luck To All!$!$
Writ Of Certiorari, A Ray Of Hope...
"Focusing only on attorney-submitted petitions, the success rate is closer to 6%, a rate that at least offers a ray of hope."
https://supremecourtpress.com/chance_of_success.html
Good Luck To All!$!$
USPTO Allows New Patent NOA 02-25-20!
*Defendants claimed the USPTO was deceived and had they seen "the letter", the patents would've never issued.
*By allowing this new patent, the USPTO has seen the letter and rejects the notion it was deceived. Nor was it an offer to sell.
Go to the Public PAIR website...
https://portal.uspto.gov/pair/PublicPair
Select "Publication Number"
Enter # 20150191675
Good Luck To All!$!$
By David Hricik, Mercer Law School
Over on the main page, Dennis has written up GS CleanTech Corp. and Cantor Colburn LLP v. Adkins Energy LLC (Fed. Cir. 2020) [Fed Cir Decision][DCT Decision] (does Dennis ever sleep?), which affirms a holding of inequitable conduct.
That finding can ruin careers. Dennis examined the merits: I want to examine the procedure used on appeal. (I’ve taught civil procedure for decades now, and served as a clerk on the court a few years ago… this case is in need of correction by the full court or the panel on rehearing — whether it changes the outcome, or not, a point on which I have no view.) Whatever the merits, the panel mistates key issues of appellate review of inequitable conduct and contradicts prior panel decisions and even Therasense itself — and does so in a way that radically increases the scope of this equitable defense while, at the same time, failing to analyze the equities, oddly enough.
Specifically, first, the panel states the the standard of review of a fact finding of materiality underlying inequitable conduct is for abuse of discretion. That is just flat wrong. “[W]e review the district court’s findings of materiality… for clear error.” Am. Calcar, Inc. v. Am. Honda Motor Co., 768 F.3d 1185, 1189 (Fed. Cir. 2014). Accord, Regeneron Pharm., Inc. v. Merus N.V., 864 F.3d 1343, 1351 (Fed. Cir. 2017).
Worse, invalidity “under the on-sale bar is a question of law with underlying questions of fact.” Robotic Vision Sys., Inc. v. View Eng’g, Inc., 249 F.3d 1307, 1310 (Fed. Cir. 2001). Accord, The Medicines Co. v. Hospira, Inc., 881 F.3d 1347, 1350 (Fed. Cir. 2018). The panel examines for abuse of discretion of, not just the underlying factual questions, but the legal question. That is wrong. Indeed, it applied abuse of discretion to whether the invention was ready for patenting, which is also wrong.
As stated, reviewed the findings of intent to deceive for abuse of discretion: that’s wrong. “This court reviews the district court’s factual findings regarding what reasonable inferences may be drawn from the evidence for clear error.”
Therasense, Inc. v. Becton, Dickinson and Co., 649 F.3d 1276, 1291 (Fed. Cir. 2011)
And, third, the panel never (as the district court apparently failed to do) analyzed equitable balancing — given the circumstances should the entire patent be held unenforceable? I’ve often observed that nothing in Therasense changed the rule that, if the accused infringer meets its burden of showing both materiality and intent, “then the district court must weigh the equities to determine whether the applicant’s conduct before the PTO warrants rendering the entire patent unenforceable.” Therasense, Inc. v. Becton, Dickinson and Co., 649 F.3d 1276, 1287 (Fed. Cir. 2011).
The panel applied the standard of review on the ultimate issue — equitable relief — to fact findings and legal conclusions. It’s a slippery slope, and one with severe consequences to the boundaries created by Therasense: it allows district courts to make clear errors on factual findings and legal conclusions, but be affirmed on appeal so long as they do not abuse their discretion. Finally and in addition, lack of careful appellate review will lead to OED investigations into practitioners, as well as ruined businesses and scientific careers.
https://patentlyo.com/hricik/2020/03/mistakes-decision-cleantech.html
Cleantech. File a new lawsuit on the new patent.
This is day three after the court’s ruling. I find it disturbing that we have heard nothing from Kevin or the company. This was a huge event in the company’s history, it seems worthy of a public comment. They obviously knew the decision was coming and that there was a high degree of probability that it would be bad news, it’s a little shocking that they didn’t have a press release already prepared. Unfortunately, this lack of information conjures up all kinds of negative images. Did Kevin just fold up his tent and go home? Did he take off for Tahiti, never to be seen again? Or is he curled up in the fetal position and sucking his thumb on the floor of his office? I doubt it is any of these but with the lack of information, one never knows.
New Attis Video 03/05/20...
https://www.youtube.com/watch?v=djnJXAQ-8PU&feature=youtu.be
Good Luck To All!$!$
So what has to happen to get some justice here? Like an unbiased judge to look at plumtree. The pto did. What's the court systems malfunction?
We hearby the court of socalled justice do declare an without consideration of cleantechs defense, wholly inappropriately, do find blah blah blah we were all appointed by obummer and I, the first gay judge disgraced the lgbt community by trading sexual favors with Michael buchanon for flavorable verdicks.
I knew this was going to be the outcome, mentioned my deep concerns over the past few months/years. I would give the odds of this being reversed by a Writ less than 1%. I give the odds of the Supreme Court hearing this almost nil. I will check back in another year of so. Kevin and his incompetent partners screwed themselves. And being him being a lawyer makes this is even harder to swallow.
What a botched ruling based on hindsight. Is the panel for real? Inept? Corrupt? I've never seen the likes. Serious flaws and serious ethical violations. This must be withdrawn.
False witness. Men loving men. Shall not steal. 3/3. And here comes the pale white horse.
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