Tuesday, April 24, 2012

Biofuels Digest on the Gevo / Butamax patent war on bio-isobutanol

In a post titled Butamax and Gevo: Bio’s Montagues and Capulets get it on, and on, and on, Biofuels Digest discusses the patent war between Butamax and Gevo without discussing a single claim of any patent. The Digest post ends with a cryptic


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<--------- ------------------------------------------------------------------------------ Back in January 2011, IPBiz noted the initial infringement action and included some relevant claims of the Butamax '188 patent. See Gevo's response to Butamax infringement assertion re: US 7,851,188 Claim 1 of the '188 patent requires polypeptides that catalyze substrate to product conversions for each step below:. Omit one polypeptide and one does not infringe. The as-filed claim did NOT have this requirement.

In September 2011, IPBiz discussed Gevo's US 8,017,375 (issued Sept. 13, 2011) in the post
Gevo bites back in isobutanol biofuel area; goes after Butamax with US 8,017,375
Gevo's US '375 included a requirement wherein said isobutanol producing metabolic pathway comprises the following substrate to product conversions: AND a term wherein said recombinant yeast microorganism expresses: with the following requirement an .alpha.-ketoisovalerate decarboxylase from Lactococcus lactis to catalyze the conversion of .alpha.-ketoisovalerate to isobutyraldehyde; Omit any of the requirements and there is no literal infringement.

Within the Biofuels Digest post:

Nevertheless, lots of pesky legal activity does not generally correlate to long-term loss in company value, for robust management teams that have built companies instead of science projects disguised as companies. Novozymes has, for example, more than 6000 pending and granted patents and a $7.6 billion market cap, and Danisco and its Genencor subsidiary recently sold to Dupont for $6 billion.

As to patent law itself, the last Gevo / Butamax tussle over re-exam of a Butamax patent has some interesting legal implications, and the USPTO stance on the AIA provision would likely surprise a few people. IPBiz will cover that separately.

Other text in the Biofuels Digest post caught the eye of IPBiz:

No one is suing anyone over, say, Cello’s technology, or to gain control of the Range Fuels process. At least not a positive suit aimed at gaining freedom to operate.

For the same reason, you never see a Western where two old prospectors duel it out over a worthless piece of land. In films like Treasure of the Sierra Madre, the fight is invariably over the gold, the map that marks the gold, or the entrance to the mine that guards the gold.

The mounting mountains of paper should be properly seen as a leading indicator of just how valuable a bio-based process to generate low-cost isobutanol from biomass can be, especially if you have figured out the engineering of separating the alcohol from the broth before it kills the microorganism.

As a double-layered counter-example, contemplate the fight over COX-2 inhibitors brought by the University of Rochester against (initially) Searle. The suit was brought the day URochester's patent issued, and ended with the URochester patent being found invalid, on summary judgment. Rumor has it UR spent over $10 million. Big dollars, yes; valuable to URochester, no! But, that's not all folks, this area is COX-2 inhibitors, which turned out to be rather bad for some people taking them, and thus not a big pharma gold mine. Ask Merck about that. Nobody mistakes this story for the Treasure of the Sierra Madre. [And, remember, in the movie, the gold blew away.] In summary, in COX-2, there was no gold, and we had two old prospectors dueling it out over a worthless piece of land. For another saga, think also about the "Dolly the Sheep" patent estate.


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