It appears that we are absolutely dead on the issues (patents) that were adjudicated by the Federal Circuit in December. I packaged all the material including the recent USPTO NOA and relevant web site data for my son, and experienced IP attorney. Here is an edited version of his thorough analysis:
I think the first thing that is important to remember is that the 7,601,858, 8,008,516, 8,008,517, and 8,283,484 patents at issue in the lawsuit that the Federal Circuit just heard are NONE OF application number 14/661,369 (published as US 2015-0191675 A1), which received its notice of allowance on 2/21/2020. The prosecution of patent application 14/661,369 and the prosecution of patents 7,601,858, 8,008,516, 8,008,517, and 8,283,484 are different questions of law and fact and this will bear directly on the enforceability of 14/661,369.
It's also important to note that patentability determinations before the USPTO are given deference by the federal courts as an administrative agency, but federal courts are not bound by all decisions before the agency (there is a bit of a distinction between typical prosecution and post-grant proceedings, but 14/551,361 has not been subject to post-grant review because it has yet to issue). If say the 14/661,369 application issues as patent number 11,000,000 (to pull a random number out of the air), and GS Cleantech alleges it in a new lawsuit, any defense of inequitable conduct pertaining to patent 11,000,000 will rise and fall on its own merits.
Also, commenting on the link you sent about the Federal Circuit decision, the author's position is that the court got the underlying standard of review wrong and failed to balance the equities but he took no position on the merits of the case. Given how hostile the court was to the lawsuit, I don't think the "correct" standard of review would have changed the outcome. In short, the 7,601,858, 8,008,516, 8,008,517, and 8,283,484 patents are likely unenforceable. But whether the forth coming patent resulting from the 14/661,369 application is enforceable is a separate question and the USPTO's finding in the 14/551,361 application has no real bearing on the outcome from the recent lawsuit.
As someone has said -- good luck to all; we are going to need it.
