Greenshift Corporation (GERS)

[nobody12378]

My take.

Mckinney found for the defendants and judged C&C to be guilty of inequitable conduct mostly based on misunderstanding the law associated with the on-sale bar. He determined that an offer to bench test their technology was an offer to purchase the IP.

There was an email that formed the basis of the offer to test that apparently was NOT submitted during discovery but emerged later that set Mckinney on this incorrect path. C&C's position was that the email was irrelevant to the proceedings and was not covered by the discovery order. Bottom line, IF the email was NOT relevant to the patent infringement litigation then there could be no inequitable conduct on C&C's part and IF bench testing did not violate the on-sale bar (the basis of McKinney's judgement) then the patents were valid.

When the USPTO reaffirmed the validity of the patents in the face of all the documents used in the proceeding they essentially agreed with C&C and GERS that bench testing did not violate the on-sale bar AND the email was not germane to the proceeding.

In response to USPTO actions ICM said, “The [patent office] does not determine the validity of issued patents—federal courts do,” http://ethanolproducer.com/articles/8049/hearing-set-for-patent-lawsuit-in-greenshift-corn-oil-case

In July 2016 the Federal Circuit Court of appeals confirmed (in another case) that bench testing did not violate the on-sale bar. The federal courts had spoken and as a result even ICM had to (internally) concede that C&C was not guilty of inequitable conduct AND GERS' patents were valid. I suspect that discussions about settlement started in earnest at that time.

The November 27, 2017 filing of a settlement with C&C must surely mean that the inequitable conduct claim will be resolved in C&C's favor. If that is correct the defendants are then agreeing that the on-sale bar had not been violated and the patents are valid.

Therefore, it is logical that the remaining settlement details that apply directly to GERS to be worked out involve monetary damages and new licensing agreements to employ GERS' technology.

In other words, we are waiting for the inevitable indication of capitulation -- the back royalties to be paid, their terms, and future license agreements.

It is all over but the shouting. We do not when, we do not not what publicity will follow and we have no idea what provisions (if any) will be made for the common shareholders to participate in the windfall. The settlement with C&C over their inequitable conduct was the lynch pin to generating this cascade of events.