Jim,
I have not changed my opinion. I believe GS will win the lawsuit but where I was 95% certain before I'm about 80% certain now.
What surprises me the most is that Cantor Colburn, during the Markman hearing, did not contest the defense’s argument that the syrup coming out was "Substantially free of oil". Everyone knows that the process is adjustable and must be in order to produce DDGs with varied oil contents.
CC should have argued for “Free of the amount of oil extracted” instead of “Substantially free of oil”.
Obviously if you run the process and extract a certain amount of oil your remaining syrup will be free of that oil but not necessarily substantially free.
Ultimately, I don’t think the court will allow the GS example, where they extracted 95%, to be the definitive say on what substantially free is. However Iroquois makes a compelling argument.
I think when this gets to trial there too much evidence in favor of GERS and the jury will see through the defense’s facade.
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