| 05/26/2020 | 178 | ORDER filed granting motion to extend time to file response to rehearing/en banc [177] filed by Appellees Big River Resources Galva, LLC, Big River Resources West Burlington, LLC, Iroquois Bio-Energy Company, LLC, Cardinal Ethanol, LLC, Lincolnway Energy, LLC, ICM, Inc., Bushmills Ethanol, Inc., Chippewa Valley Ethanol Company, LLP, ACE Ethanol, LLC, Blue Flint Ethanol LLC, United Wisconsin Grain Producers, LLC, Flottweg Separation Technology, Inc., David J. Vander Griend, Lincolnland Agri-Energy, LLC, Heartland Corn Products, GEA Mechanical Equipment US, Inc., Aemetis, Inc., Little Sioux Corn Processors, LLLP, Guardian Energy, LLC, Western New York Energy, LLC, Southwest Iowa Renewable Energy, LLC, Pacific Ethanol Magic Valley LLC, Pacific Ethanol Stockton, Homeland Energy Solutions, LLC, Pacific Ethanol, Inc., Al-Corn Clean Fuel, LLC and Adkins Energy LLC. By: Per Curiam. Service as of this date by the Clerk of Court. [696867] [JAB] [Entered: 05/26/2020 01:16 PM] SkunK |
Tuesday, May 26, 2020
Ext Approved
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David Cantrell
-----Original Message--·--
From: David F Cantrell [mailto:dfcantrell@alltel.net]
Sent: Monday, May 31, 2004 8:11 AM
To: Mike Stanley
Cc: Mike Schmolll; AA-David Winsness; Brian Pike; Dell Hummel; Mark Lauderbaugh
Subject: Ethanol Oil Recovery Testing " '
Hello,
First, let me congratulate you on a very successful first test. Remember, removing the oil from the syrup has never been done 'before. The initial testing at the lab was successful in removing the oil from the syrup after the evaporator but not before the evaporator. Since the table-top gyro has a much higher G force than the centrifuge, we could not know the outcome until we ran the syrup through a commercial test system. Also, it is VERY IMPORTANT to keep the test and testing results confidential. I am asking everyone included in this e-mail to honor this. Since Agri Energy is our testing partner, the first system and the benefits of early marketing opportunities will be offered to you for your assistance.
The next step is to determine a testing protocol to answer the following questions.
…
2. What is the volume of oil in the syrup before the test centrifuge?
...
6. What is the maximum gallon per minute that this test machine can run at different oil qualities?
7. Do we need an additional small centrifuge machine to produce the highest quality oil? We can possibly test this by running the oil back
through the test machine to make sure that we can improve the purity of the oil.
Please communicate any other questions that should be included in the testing protocol.
Thanks again for all your hard work and we look forward to continued success.
Regards,
David Cantrell
Agri-Energy, LLC
Luverne, Minnesota
MiS 600 Test Centrifuge
https://drive.google.com/file/d/0B_ch8gAs4lCcMDgyNjA5YzAtNjY3NC00MGQxLWJmMTUtZjc4NWRhYjYyMjFi/view
Since the table-top gyro has a much higher G force than the centrifuge, we could not know the outcome until we ran the syrup through a commercial test system.
*What is wrong with the Court system?
*What is the Court's definition of testing?
*Do the terms test, offer to test, test centrifuge, testing protocol, oil recovery testing, first test, commercial test system, testing results, testing partner and test machine not qualify for the Courts definition?
*Why is it the USPTO can do their job but the Justice's can't?
G S Cleantech Petitions Fed. Cir. for Rehearing En Banc
Wednesday, May 27, 2020
https://www.natlawreview.com/article/g-s-cleantech-petitions-fed-cir-rehearing-en-banc
The questions presented in the Petition follow:
When a d. c.’s summary judgment of invalidity conclusively establishes the “materiality” prong of inequitable conduct, may this court [the Fed. Cir.] refuse to review the S.J. de novo, and only review the IC finding for “abuse of discretion”?
May this court find that an appellant “waived” reliance on controlling, dispositive authority because it cited that authority “only once” below?
May this court review factual findings of “materiality” and “intent” for abuse of discretion, in violation of Star Scientific?
May this court affirm, in a single footnote, a S. J. of obviousness, despite the presence of genuine factual disputes, and even though the d. c.’s decision lacked the required “cogent reasoning.”
Even though these questions seem to be primarily procedural, the petition for rehearing en banc reads like the next chapter in this novel. The central substantive questions are not “did the attorneys/inventors intend to conceal evidence of the on-sale bar” (thus demonstrating the “intent to deceive” element), not even “did the attorneys/inventors believe that the Letter was conclusive evidence that would trigger the on-sale bar”, but rather “was the Letter and facts surrounding it sufficient to meet the hard but-for materiality standard of Therasense.” To meet that standard, the Letter and the facts surrounding it had to be sufficient to trigger the on-sale bar and to negate the experimental use exception to the on-sale bar. The Therasense court continued:
“This higher intent standard [of Kingsdown], standing alone, did not reduce the number of inequitable conduct cases before the courts and did not cure the problem of overdisclosure of marginally relevant prior art to the PTO. To address these concerns, this court adjusts as well the standard for materiality.” Slip. Op. at 25…When an applicant fails to disclose prior art to the PTO, that prior art is but-for material if the PTO would not have allowed a claim had it been aware of the undisclosed prior art.”
In fact, the PTO does not get to decide whether or not the Examiner would have rejected the claims, applying the PTO standards of “preponderance of the evidence” giving the claims ‘the broadest reasonable construction.” The reviewing court makes that decision.
For a moment, I considered that CleanTech’s behavior may have fallen into the catch-all trap of “affirmative egregious misconduct”, since at least the first Cantrell declaration provided a false date for delivery of the Letter to the putative purchaser, and ‘[a]ffidavits are inherently material”. However, the Therasense court clarified the weight to be given to a declaration containing, e.g. incorrect dates of the prior art Letter, or mentioning the prior art Letter but not fully explaining it:
“Because neither mere nondisclosure of prior art references to the PTO nor failure to mention prior art references in an affidavit constitutes affirmative egregious misconduct, claims of inequitable conduct that are based on such omissions require proof of but-for materiality.”
So here we are, back at the requirement for but-for materiality, and the petition for rehearing en banc’s key arguments. Since the trial court invalidated the patents based on application of the on-sale bar on summary judgment, but decided the IC question after a later bench trial, CleanTech argues that the court nullified its right to appeal the “partial” S. J., since not all of the claims in the suit had been settled. The petition also argues that the Fed. Cir. panel should have reviewed the summary judgment, which was based on the on-sale bar, de novo, without deference, instead applying the abuse of discretion standard to affirm both the district court’s summary judgment of materiality and its later finding of IC. In effect, this left only the issue of intent to be decided at the IC bench trial, and CleanTech was barred from submitting additional information on the ‘known materiality’ prong of the IC charge.
Substantively, CleanTech argues that there were genuine disputes on whether an offer for sale or a sale had been made, or did the Letter primarily have an “experimental purpose”, a question of fact that should not have been decided on summary judgment. The controlling dispositive authority that the petition argues was cited in the opposition to the S. J. but not considered by the Panel, is Plumtree Software v. Datamize, 473 F.3d 1152 (Fed. Cir. 2006). The reasoning of the d. c. was that, before the critical data, Plumtree (then “MA”) offered to install an interactive kiosk embodying the software claims in suit at a tradeshow for a waiver of the registration fee.
The Fed. Cir. wrote that determination of whether an invention was on sale is a question of law that the court will review without deference, as is the grant of summary judgment. The inventor met with the tradeshow’s promoter, SLA, but testified that he did not explain how the proprietary software allowed for “rapid updating.” The parties agreed to the terms above. The show was held after the critical date and the Fed. Cir. found that it was unclear whether or not the patented process was used by anyone in accord with the contract before the critical date. The parties had stipulated that the invention had been reduced to practice before the tradeshow. The Fed. Cir. found that MA had received consideration prior to the critical date.
However, the Fed. Cir. found that, while there was a commercial offer between MA and SLA before the critical date, but that the contract was ambiguous as to whether or not the contract required MA to provide the kiosk system software or to perform the patented method, [ed. note – “itself’?) and that there was no evidence beyond the contract that indicated that MA was bound to perform the patented method. The Fed. Cir. also found that there was no evidence that MA performed all of the critical process steps before the critical date, pursuant to the contract. While the software – the authoring tool –was used to create the kiosk system displayed at the tradeshow, the kiosk system was not finished until after the critical date, “and it is unclear whether [the inventor] performed each of the patented method steps before the critical date. The Fed. Cir. went on to remand the case for further fact-finding, and did not discuss the experimental use exception to the on-sale bar, if that point was argued, because the court found that the on-sale bar had not been established.
In the Cleantech panel decision, Cleantech argued that the Letter did not trigger the on-sale bar –”or at least there were genuine disputes of fact”—since (i) the Letter did not unambiguously require use of Plaintiff’s patented method [citing Plumtree], the letter proposed no more than an experimental use, and that the invention was not ready for patenting. Of course, in this case, unlike Plumtree, the parties did not enter into a sales contract where the parties agreed that Agri-Energy would pay some amount to use the “test module” to carry out the patented process. Rather
CleanTech offered the “test module” to Agri-Energy for a sixty day trial, after which Agri-Energy could buy the module for a stated price, or send it back. It seems relevant that Agri-Energy would be under no obligation to operate the “test module” for any purpose. They could let it sit in their factory for sixty days, then just send it back.
While the d. c. ruled, and the panel agreed that, under the UCC, the Letter was a “sale on approval”, it could be no more than an “offer to enter into a sale on approval”, if there is such a doctrine and, as we know, the offer was not accepted. The panel went on to affirm the d. c.’s finding that the invention was ready for patenting, and that the experimental use exception to the on-sale bar did not apply. After reading the petition, it seems that the panel’s truncated summary of the Allen factors left much to be desired.
There are 13 factors that a court is supposed to consider when it is attempting to resolve whether or not the Letter was an offer for sale or rather, was for the purpose of further experimentation. See, e.g, Energy Heating v. H-O-T–F, a recent Fed. Cir. decision cited repeatedly by the panel for a complete list of the factors.
The panel’s opinion only mentions CleanTech’s arguments regarding factors (1) and (10). The petition states that the inventors testified that they needed to experiment with the invention in an ethanol plant, the Letter said it was for a trial, that all discoveries resulting from the trial process shall remain the property of [Cleantech] and be confidential, the inventors would control and modify the testing, and the option to buy would vest only after the critical date. These statements would implicate at least Allen factors (2), (4), (6), (8), (10) and (12) – although some of the factors would only have come into play if the Letter was accepted, they were apparently present in the Letter.
The panel’s finding that CleanTech’s arguments about the activity did not give rise to, at least, a question of experimental use are undercut by the language of the opinion, which uses the terms “tests” or “testing” six times on one page (See slip op. at 9). For example, an Agri-Energy employee conducted what appears to have been a bench test of the process, and “recommended additional testing at a plant.” He traveled to [CleanTech] where he conducted additional experiments. The panel’s opinion states: “During the test, the centrifuge separated the oil from the syrup, but the centrifuge repeatedly clogged.” This sounds a lot like a failed experiment. The offer Letter followed which referred to the equipment used to carry out the process, as “a test module”. In fact, Agri-Energy did not accept the terms of the Letter.
To try to come full circle, I think that CleanTech and their law firm was “punished” with an IC finding, primarily because they tried to strengthen their experimental use argument by later contacting Agri-Energy and asking them to confirm facts that indicated that use of the process was for testing purposes. The false or incomplete declarations that were filed during prosecution did not help matters any but, as noted above, declarations that purposely omit prior art do not rise to the level of affirmative egregious misconduct, although they may evidence intent to commit inequitable conduct.
Let’s close, if you got this far, with my attempted murder analogy. I don’t think that there is any question regarding CleanTech and Cantor Colburn’s intent to suppress evidence that they believed would lead the PTO to reject the claims under the offer to sell bar. Nonetheless, if there was in fact no offer-to-sell bar –no matter what the inventors or their attorneys believed– no known material information was kept from the PTO, and there can be no finding of IC. If you shoot a gun at someone and think you have killed him/her, but you are wrong, and so throw away the gun, you are still not guilty of murder. Likewise, if you believe that you have created a statutory bar to patenting, and so you suppress evidence of the bar but, in fact, there is no statutory bar, no information material to patentability was suppressed, and you cannot be found to have committed inequitable conduct. Is there any interest in turning this post into an amicus brief?
"Since the table-top gyro (2003) has a much higher G force than the centrifuge, we could not know the outcome until we ran the syrup through a commercial test system (2004)."
Thank you for the excellent article. Please keep it coming!
This travesty of so-called justice boggles my mind. The inventors intent of the 2003 offer letter was clearly to test. Importantly, after the 2003 bench top centrifuge extracted some oil and repeatedly clogged, the inventors were concerned about whether a commercial centrifuge (much lower G force) would work. Hence the need and offer to test under actual, real-time conditions, without clogging.
The Court was misled to believe the June 2003 test was syrup in a centrifuge. It was in a test tube, not a centrifuge. The Court was also misled to believe the July 2003 testing of syrup was conducted at a temperature of 180 degrees. It was not. The sample was collected with a 2 quart pitcher at 180 and allowed to sit, settle, and cool before testing extracted some oil and clogged. It was not re-heated and the Court failed to catch-on to this key issue. It's important since the patented temperature range is a minimum of 150 degrees. I did a quick experiment in my kitchen: I heated oil and water to 180 and collected a sample in a 2 court pitcher. The temperature instantly dropped 7 degrees due to the transfer of a hot liquid to a cool container. I continued to monitor the temperature and within 7 minutes, it had dropped below the required 150 degree temperature to practice the method. The July 2003 testing took 6 hours and the sample quickly cooled below the required temperature before testing. The Court failed the public and falsely wrote in their opinion that the July 2003 lab test was conducted at 180...It's thermo-dynamically impossible.. The July 2003 sample was not representative of actual conditions because solids settled out and it cooled. The patents also require oil to be extracted in a continuous fashion as the syrup is being evaporated. Not an intermittent, batch like collection in 2 quart pitchers.
Additionally, the inventors were aware of the 1 year on-sale bar in early 2004, just 6 months after the 2003 offer to test letter. Why in the world would they try and deceive the USPTO if they thought it was an offer to sell? They still had 6 months to file if they believed it was an offer to sell. They waited to file for the patent exactly 3 months after the 2004 commercial test system proved successful.
Good Luck To All!$!$
Why are you trying to convince us??? We mean nothing... Focus your energy where is counts... And I still contend that something smells with all this...
Despite the narrative defendant's fed to the Court's... The USPTO examiner determined she was not deceived, the offer letter was not material to patentability and it was for experimental purposes.
I wonder if she based this strictly on Plumtree?
Could her findings have anything to do with the fact that test/testing is mentioned 45 times in exhibit C?
https://drive.google.com/file/d/0B_ch8gAs4lCcMDgyNjA5YzAtNjY3NC00MGQxLWJmMTUtZjc4NWRhYjYyMjFi/view
Maybe it has something to do with the inventor's train-of-thought about the testing in May, 2004 Titled: Ethanol Oil Recovery Testing...
"First, let me congratulate you on a very successful first test. Remember, removing the oil from the syrup has never been done 'before. The initial testing at the lab was successful in removing the oil from the syrup after the evaporator but not before the evaporator. Since the table-top gyro has a much higher G force than the centrifuge, we could not know the outcome until we ran the syrup through a commercial test system. Also, it is VERY IMPORTANT to keep the test and testing results confidential. I am asking everyone included in this e-mail to honor this. Since Agri Energy is our testing partner, the first system and the benefits of early marketing opportunities will be offered to you for your assistance.
"
Agri-Energy should be ashamed of themselves...They deprived this man of his invention, deceitfully withheld documents and have robbed the public of the many millions they invested. They knew damn well this was for testing purposes and they lied...
Good Luck To All!$!$
Slash,
At the very least this proves inequitable conduct is a farce since they obviously believed they were still experimenting? I think they forgot about the email but the PTO's view is it didn't really matter?
CleanTech: (invents tech, invests gajillions, perfects process, educates industry, obtains patents, seeks reasonable royalty, innovation 101)
Ethanol Industry: “this is my corn. Go pound.”
CleanTech: (files suit) “royalties are accruing.”
Ethanol Industry: “we can’t win if we go to trial. We need the Chewbacca defense.”
Ethanol Industry: “look at the monkey. Look at the silly monkey.”
Judge McKinney: (head explodes)
youtu.be/clKi92j6eLE
Post Evaporation Heating Step...
Appellee's argued the patent specifications do not disclose a post evaporation heating step.
This is obviously ridiculous.
From the 858 patent:
Quote:
The specification
discloses two main steps: “evaporating the thin stillage to form a concentrate;”
and “recovering oil” from the concentrate.
How did these Court's screw things up so bad? Are the judge's over-thinking this or can't they read plain English?
step 1. Begin step--evaporate thin stillage--end step. Result--stillage has been concentrated. It's called concentrated stillage.---Step is complete. Go to next step.
step 2. Next step--recover oil from concentrate(see step 1 for concentrating step) by heating and mechanically processing the concentrate(reminder, concentrate was already concentrated in step 1).--step complete. Result--de-oiled concentrate.
Why are simple words so hard to understand?
Stillage is concentrated by evaporating moisture. The concentrate is then subjected to heat and mechanical processing.
Quote:
produce a thin stillage concentrate, wherein the thin stillage concentrate has a moisture content of greater than 30% and less than 90% by weight; and recovering oil from the concentrate by a process consisting essentially of heating and mechanically processing the concentrate to separate the oil from the concentrate.
You can't heat and centrifuge a concentrate until the concentrate has been formed. Without the concentrate step being completed, there is no concentrate to heat.
Heating and mechanically processing the concentrate means thin stillage was evaporated to produce a thin stillage concentrate.
Now that a concentrate has been produced, here's what you do. You heat the concentrate and centrifuge it to extract oil.
Here's an experts view on the subject...
Quote:
Objects warmer than their environment lose heat to it; that is thermodynamics. After thin stillage has been evaporated, the resulting syrup flows into a “tank,” where it sits before being processed by the centrifuge.
(Eckhoff report, showing “Syrup Tank” after evaporator). In this tank, syrup will rapidly cool.
Thus, when syrup is pumped into the centrifuge, it will almost always be
cooler than 150-212°F. Appx36283-36284. As Eckhoff opined, any POSITA
would know that to “provide” the syrup at 150-212°F, they must “re-heat” it.
Thus, a reasonable jury could conclude, the Patents-in-Suit adequately disclose reheating syrup to 150-212°F.
Defendant's lied to the judge telling him syrup needing to be reheated was a hypothetical problem (even though they do it in their own plant's).
Quote:
Appellees argue that “syrup cooling and needing to be reheated” is “a
hypothetical problem.”
Here's a hypothetical problem for appellee's to ponder... Let's say some employee's at Agri-Energy climb a ladder to dip room temperature iced tea pitchers (2 quart size) into the top of a syrup tank. They climb down the ladder and start walking towards the lab on the other side of the ethanol plant. While gleefully skipping around, nature calls and they hit the bano. Now dehydrated, they stop by the break room for a soda. Back on track, they head towards the lab but slip outside for a smoke in celebration of robbing the public. Finally, they make it to the lab where the quickly cooling concentrate sit's on the table. It keeps cooling for 6 hours.
That's just a hypothetical situation where stillage concentrate would need to be reheated in order to practice the methods in the patent...
Good Luck To All!$!$
The other interesting fact is that if it were an offer for sale then why wouldn't Greenshift, who had no money at all at that time, make offers to everyone in the industry. The reason----they had to test their process under real conditions to see if it even worked for its intended purpose, i.e., at the high flow rates used in ethanol facilities.
Why was it VERY IMPORTANT to keep the test and testing results confidential? Was that some sort of reverse psychology sales tactic back in 2004?
It's because they were still experimenting. When you're trying to make sales, you want the whole world to know. If you're still developing, you want secrecy until you're ready.
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