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Genetic Veterinary Sciences, Inc. v. Laboklin Gmbh & Co. KG

United States District Court, E.D. Virginia, Norfolk Division

May 14, 2018

GENETIC VETERINARY SCIENCES, INC., d/b/a Paw Prints Genetics, Plaintiff,
v.
LABOKXIN GMBH & CO. KG & THE UNIVERSITY OF BERN, Defendants.

          OPINION & ORDER

          Henry Coke Morgan, Jr., Senior United Slates District Judge

         This comes on Plaintiff, Genetic Veterinary Sciences, Inc., d/b/a Paw Print Genetics' ("Plaintiff or "PPG") Motion for Judgment as a Matter of Law under Rule 50 of the Federal Rules of Civil Procedure ("Plaintiffs Motion for JMOL"). Doc. 140. For the reasons stated below, the Court GRANTS Plaintiffs Motion for Judgment as a Matter of Law.

         I. BACKGROUND

         This action concerns U.S. Patent No. 9, 157, 114 (the "'114 patent"), a patent regarding an in vitro method for genotyping Labrador Retrievers in order to discover whether the Labrador Retriever might be a genetic carrier of the disease Hereditary Nasal Parakeratosis ("HNPK"). Doc. 74 at 4; Doc. 75 at 8. HNPK. is a disease that causes crusts and fissures to appear on the nose of dogs, including Labrador Retrievers. HNPK is a recessive condition that passes to a Labrador Retriever puppy when both of the dog's parents are carriers of the gene that causes HNPK. A dog's parent is considered a carrier when it only has one copy of the mutation. These carriers do not have the disease; however, when the two carriers mate, one copy of the mutation is passed to the puppy from each of them leading to the presence of HNPK. After six years of research, one of The University of Bern's professors, Dr. Toso Leeb, discovered that the presence of HNPK in Labrador Retrievers resulted from a point mutation in the SUV39H2 gene. Once Dr. Leeb discovered this correlation, he developed a corresponding method for genotyping Labrador Retrievers, which is the subject of the '114 Patent.

         Plaintiffs complaint seeks declaratory judgment that the '114 patent is invalid and therefore cannot be infringed by PPG. Doc. 1 at 6. Altogether, the '114 Patent has five (5) claims relating to the process of genotyping a Labrador Retriever for the presence of HNPK. Ex. 1 at Cols. 15-16. However, for purposes of the instant action, Plaintiff stipulated that its method is within the scope of claims one (1) through three (3), and Defendants LABOklin GmbH & Co., KG, and The University of Bern (collectively, "Defendants") agreed not to assert claims four (4) and five (5) against Plaintiff. Doc. 74 at 4; Doc. 75 at 9. According to the language of the ' 114 Patent, the invention recited in claims one (1) through three (3) is:

         1. An in vitro method for genotyping a Labrador Retriever comprising:

a) Obtaining a biological sample from the Labrador Retriever;
b) Genotyping a SUV39H2 gene encoding the polypeptide of SEQ I NO: 1 and
c) Detecting the presence of a replacement of a nucleotide T with a nucleotide G at position 972 of SEQ ID NO:2 2. The method according to claim 1, wherein the genotyping is achieved by PCR, real-time PCR, melting point analysis of double-stranded DNA, mass spectroscopy, direct DNA sequencing, restriction fragment length polymorphism (RFLP), single strand conformation polymorphism (SSCP), high performance liquid chromatography (HPLC), or single base primer extension.
3. The method of claim 1, wherein the genotyping utilizes a primer pair comprising of a first primer and a second primer, each compromising a contiguous span of at least 14 nucleotides of the sequence SEQ ID NO: 2 or a sequence complementary thereto, wherein:
a) Said first primer hybridizes to a first DNA strand of the SUV39H2 gene;
b) Said second primer hybridizes to the strand complementary to said first DNA strand of the SUV39H2 gene; and
c) The 3' ends of said first and second primers are located on regions flanking the position 972 of SEQ ID NO: 2, or of nucleotide positions complementary thereto.

Ex. 1 ("The '114 Patent") Cols. 15, 16.

         II. PROCEDURAL HISTORY

         On February 22, 2017, Plaintiff filed a complaint seeking declaratory judgment that the '114 patent is invalid and therefore cannot be infringed by PPG. Doc. 1 at 6. On May 8, 2017, the Court GRANTED Defendants an extension of time to respond to the Complaint. Doc. 21. Defendants filed a Motion to Dismiss on June 1, 2017. Doc. 29. The Court held a hearing on the Motion to Dismiss on October 10, 2017 and DENIED it. Doc. 67; see Doc. 68. Defendants filed an Answer and Counterclaim for Infringement on October 24, 2017. Doc. 69. By stipulation, Plaintiff agreed that for purposes of this action, its test is within the scope of claims one (1) through three (3) of the '114 patent as asserted in the counterclaim. See Doc. 63. The Parties also stipulated that Plaintiff would pay the greater of 25% of the sales price or $16 per test to Defendants if any of the three (3) claims are found valid. Doc. 78.

         Plaintiff filed a Motion for Summary Judgment regarding validity of the ' 114 patent on December 22, 2017. Doc. 73. On January 18, 2018, the Parties filed a joint statement that no claim construction was necessary. Doc. 77.

         On January 31, 2018, the Court heard oral argument on Plaintiffs Motion for Summary Judgment. Doc 80. On March 27, 2018 this Court entered an Order denying Plaintiffs Motion for Summary Judgment and Granting Defendants' Motion to Strike Plaintiffs Statement of Undisputed Facts in part. Doc. 93.

         On March 29, 2018, Plaintiff filed a Motion for Clarification and Reconsideration of the Court's Order Denying Plaintiffs Motion for Summary Judgment and Granting Defendants' Motion to Strike, in Part. Doc. 94. On April 4, 2018, this Court denied Plaintiffs Motion for Reconsideration. Doc. 99. The Court held a Final Pretrial Conference and entered a Final Pretrial Order on April 19, 2018. Docs. 113, 113-1. A jury trial for this matter began on April 30, 2018. Doc. 135. Plaintiff rested its case on April 30, 2018. Id. At the close of Plaintiff s evidence, Defendants moved for Judgment as a Matter of Law arguing that no reasonable juror could find claims one (1) through three (3) of the '114 Patent invalid. The Court DENIED Defendants' Motion. On May 2, 2018 Defendants rested their case and both parties filed a brief regarding the patent eligibility of Claim one (1) of the '114 Patent. Docs. 138, 139. After the close of Defendants' ...


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