Wednesday, March 18, 2015

Gevo suffers losses to Butamax at PTAB

In a decision filed March 3, 2015 on an IPR filed by Butamax against Gevo's US patent 8,273,565, the PTAB found contested claims invalid. Butamax wins. Part of the decision involved a lack of support in provisional applications for later-filed claims. See IPR 2013-00539. The decision was written by Judge Kerry Begley.

Of relevance to this loss by Gevo, note the document at

Which suggests Gevo may not have the resources to continue fighting.

Law 360 covered a different defeat for Gevo at the hands of Butamax:

By Vin Gurrieri
Law360, New York (March 16, 2015, 7:14 PM ET) -- The Patent Trial and Appeal Board on Friday determined that Butamax Advanced Biofuels LLC has shown in an America Invents Act review that a renewable jet fuel patent belonging to rival Gevo Inc. is not patentable in light of prior art.

In a final written decision in an inter partes review, the PTAB determined that Butamax showed by a preponderance of the evidence that the challenged claims of Gevo's U.S. Patent Number 8,546,627 are invalid as either anticipated or obvious over the prior art under Sections...

These follow other losses by Gevo. From IPR- pgr:

Challenging two patents with a common parent application, Butamax Advanced Biofuels was able to get 28 challenged claims of one Gevo patent and 18 challenged claims of a second into separate trials for inter partes review, in cases styled as Butamax Advanced Biofuels LLC v. Gevo, Inc. (IPR2013-00214 and IPR2013-00215), involving U.S. Pat. Nos. 8,304,588 and 8,283,505.
This decision shows why there is a growing trend in IPR practice to waive the Patent Owner Preliminary Response or, at the least, to not focus on the merits of, for example, an obviousness analysis. Time and again in the Board’s decision, it discounted the attorney argument of Patent Owner and referred, instead, to the declaration testimony of Patent Challenger’s expert. Clearly, expert evidence, if properly presented, is provided great weight, as compared to mere attorney argument (and no expert testimony is, of course, allowed in such a Preliminary Response). As such, Patent Owners are reconsidering the forecast of arguments that could be made in the formal response to the petition, when expert testimony may be provided, given that the Board is not giving much weight to those arguments in the Preliminary Response.

As to litigation in court, IPBiz does not foresee a favorable outcome for Gevo arising from the remand
based on Teva v. Sandoz. The interesting point will be "how" the CAFC handles it.


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