Gevo Inc (GEVO)

[Master-of-Disaster]

PTAB Nixes Gevo Renewable Jet Fuel Patent In AIA Review

http://www.law360.com/articles/631859/ptab-nixes-gevo-renewable-jet-fuel-patent-in-aia-review

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 102 and 103 of the Patent Act.

“It is ordered that claims 1-21 of the ’627 patent are unpatentable,” the PTAB said in its decision.

Butamax, a joint venture between BP PLC and DuPont Co., had filed its IPR petition with the PTAB seeking to review claims 1 through 21 of the '627 patent.

The board instituted a review of the patent in May, along with three other reviews of patents in the same family as the ’627 patent — U.S. Patent Numbers 8,193,402; 8,378,160; and 8,487,149. The board has yet to issue final written decisions in those IPRs.

The '627 patent relates to a method of fermenting a biomass with a microorganism, dehydrating the resultant alcohol to form biofuel precursors and then subjecting the biofuel precursors to processes that ultimately form renewable jet fuel, according to court documents.

Although the PTAB said that the '627 patent is not the subject of any other litigation, Butamax and Gevo have been frequent rivals in the courtroom.

In January, the U.S. Supreme Court remanded back to the Federal Circuit a duspite between the two parties over Gevo's alleged infringement of U.S. Patent Numbers 7,851,188 and 7,993,889. In February 2014, the Federal Circuit revived the suit after finding that U.S. District Judge Sue L. Robinson had incorrectly construed a key term when she granted summary judgment to Gevo that it didn't infringe Butamax's patents on a cell that produces the biofuel isobutanol.

Gevo appealed the ruling to the Supreme Court in May, asking the high court to review the standard of review for claim construction.

The high court remanded the case in light of its Jan. 20 holding in Teva Pharmaceuticals USA Inc. et al. v. Sandoz Inc., which held that factual findings made by a district court when construing the claims of a patent are entitled to deference on appeal, discarding the Federal Circuit's long-standing rule that all aspects of claim construction must be reviewed de novo.

In July, Judge Robinson in another case between the two companies granted Butamax's motion for summary judgment of noninfringement of Gevo's U.S. Patent Numbers 8,017,375 and 8,017,376, which are related to the production of isobutanol from recombinant microorganisms.

A month later, though, the judge refused to award Butamax attorneys' fees after concluding that Gevo hadn’t pointlessly filed suit against its rival the day that Butamax’s patents for the biofuel issued, noting that the already extensive litigation between the two showed that the lawsuit wasn’t meritless.

Administrative Patent Judges Sheridan K. Snedden, Christopher L. Crumbley and Georgianna W. Braden sat on the panel for the PTAB.

Attorneys for both parties were not immediately available for comment on Monday.

The patent-in-suit is U.S. Patent Number 8,546,627.

Butamax is represented by Deborah Sterling and Peter Jackman of Sterne Kessler Goldstein & Fox PLLC.

Gevo is represented by Thomas Blinka and William Brow of Cooley LLP.

The case is Butamax Advanced Biofuels LLC v. Gevo Inc., case number IPR2014-00250, before the Patent Trial and Appeal Board.

--Additional reporting by Ryan Davis and Alex Lawson. Editing by Stephen Berg.