DuPont, BP Can't Stop Gevo Biofuel Sales In Patent Fight (Law360)

By Eric Hornbeck

A Delaware federal judge on Tuesday denied a request by a DuPont Co. and BP PLC joint venture to block rival Gevo Inc. from selling its ethanol-alternative biofuel in a patent infringement case over the companies' biofuel products.

U.S. District Judge Sue Robinson refused the preliminary injunction motion by Butamax Advanced Biofuels LLC that would have prevented Gevo from producing its isobutanol biofuel, after she interpreted Butamax's claims and concluded that they were unlikely to prevail.

She also noted that the U.S. Patent and Trademark Office has also found one of the claims of the patents-in-suit, U.S. Patent Number 7,993,889, was invalid.

"The fact that the '889 patent has been rejected on re-examination, combined with the finding by the court that plaintiffs likely claim construction is too narrow, demonstrate that defendant's invalidity defenses do not lack substantial merit," Judge Robinson said.

The two companies have been locked in a series of patent disputes dating back to January 2011 when Butamax first accused Gevo of infringing Butamax's method for producing isobutanol as a byproduct of fermentation. The company sued again March 12 over Gevo's use of a Butamax-patented process for using a class of enzymes to help speed isobutanol production.

The preliminary injunction bid dealt with the '889 patent. Butamax has also sued Gevo over U.S. Patent Number 7,851,188.

The patents-in-suit involve the production of isobutanol, an ethanol alternative, with the help of genetically engineered yeast molecules, according to Judge Robinson's opinion.

Butamax said that the judge's Tuesday decision only dealt with a fraction of the total patents and claims at issue in the suit, adding it remained confident that the ultimate decision would go its way.

"The court's decision is not a final determination of infringement or invalidity concerning the '188 and '889 patents as it is merely a determination that the extraordinary remedy of a preliminary injunction is not available at this time," Butamax CEO Paul Beckwith said.

"This is an early step in a long and complex litigation process," he added.

Butamax spokeswoman Pam School said the company planned to appeal the ruling.

Gevo's attorney James P. Brogan of Cooley LLP said his client was "thrilled" with the decision.

"It's a positive indication from the judge yesterday, which is terrific," he told Law360 on Wednesday. "It's a terrific analysis. You look at these things and you hope people will understand and get it, but you don't know until they see it."

A jury trial in the case is scheduled for April 2013.

Butamax is represented by Richard L. Horwitz and David E. Moore of Potter Anderson & Corroon LLP and Leora Ben-Ami, Thomas F. Fleming, Christopher T. Jagoe of Kirkland & Ellis LLP and Hank Heckel of Kaye Scholer LLP.

Gevo is represented by Thomas C. Grimm and Jeremy A. Tigan of Morris Nichols Arsht & Tunnell LLP and James P. Brogan, Carolyn V. Juarez, Ann Marie Byers, Michelle S. Rhyu, Jesse Dyer and Dan Knauss of Cooley LLP

The case is Butamax Advanced Biofuels LLC v. Gevo Inc., case number 1:11-cv-00054, in the U.S. District Court for the District of Delaware.

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