Friday, February 20, 2015

Gevo/Butamax post Teva/Sandoz

A January 2015 post at biofuelsdigest contained the text:


On April 11, 2013, the Delaware District Court (District Court) entered a final judgment of non-infringement in Gevo’s favor following the acknowledgment by Butamax Advanced Biofuels LLC (Butamax) that Gevo does not infringe Butamax’s asserted patents under the District Court’s construction of a key claim term in Butamax’s Patent Nos. 7,851,188 and 7,993,889.

At the time, Butamax appealed Gevo’s victory, and a US Court of Appeals in February 2014 vacated the District Court’s prior rulings, and ordered the District Court to reconsider issues related to infringement and invalidity.

In turn, Gevo asked the Supreme Court to vacate the Appeals Court’s de novo nterpretation of a disputed claim term. Today, the Supreme Court granted Gevo’s petition and vacated the decision of the Appeals Court.

According to Gevo: “The result is that Gevo’s victory in the Delaware District Court is reinstated, and that the case has been remanded back to the Appeals Court for consideration in light of the new standard of appellate review that was decided in the Teva Pharmaceuticals USA, Inc., v. Sandoz, Inc. (Teva) case last week.”


One notes that Butamax stipulated to non infringement under the D Delaware claim construction for the purpose of appealing to the CAFC.

Here the D Delaware interpretation relies on extrinsic evidence. However, the CAFC could find the claim can be construed using intrinsic evidence, which is subject to de novo review. The CAFC has taken this tact in two post-Teva cases. This would produce the same CAFC conclusion.


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