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BASF Plant Science, LP v. Commonwealth Scientific and Industrial Research Organization

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

May 15, 2019

BASF PLANT SCIENCE, LP, Plaintiff,
v.
COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANIZATION, GRAMS RESEARCH AND DEVELOPMENT CORPORATION, AND NUSEED PTY LTD, Defendants. COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION, GRAINS RESEARCH AND DEVELOPMENT CORP. AND NUSEED PTY LTD., Plaintiffs- Counterclaimants
v.
BASF PLANT SCIENCE, LP, AND CARGILL, INC., Defendants-Counterdefendants.

          SUPPLEMENTAL CLAIM CONSTRUCTION OPINION AND ORDER I

          Henry Coke Morgan, Jr. Senior United States District Judge

         On April 10, 2019, the Court held a hearing for the purpose of construing ten (10) disputed terms in the patents at issue and resolving two (2) motions to dismiss and a motion to compel discovery. At the hearing, the Court resolved the meanings for eight (8) of these terms and took the construction of two (2) terms under advisement. On April 30, 2019, this Court entered an Opinion and Order explaining its construction of those eight (8) terms. Doc. 274.

         The Court has decided that it will CONSTRUE term (10) as described below. The Court will continue to take term (9) UNDER ADVISEMENT to continue its consideration of the matter. However, as the parties are in the process of narrowing their claims, this Court hereby issues this Supplemental Opinion and Order on Term (9) to assist in their process.

         I. Factual Background & Procedural History

         The facts and procedural posture of this case have been summarized in this Court's previous Opinions, including its Claim Construction Opinion & Order, doc. 274. Accordingly, this Court will not repeat its recitation of the background of this case.

         IL Claim Construction

         A. LEGAL PRINCIPLES OF CORRECTING ERRORS IN CLAIM LANGUAGE

         A district court may correct obvious errors in a patent claim. CBT Flint Partners. LLC v. Return Path. Inc.. 654 F.3d 1353, 1358 (Fed. Cir. 2011). Generally, a court should only make corrections where: "(1) the correction is not subject to reasonable debate based on the consideration of the claim language and the specification and (2) the prosecution history does not suggest a different interpretation of the claims." Id. The Federal Circuit has held that a court should not make corrections to claim language if the corrections are "substantively significan[t]" or require guesswork as to the patentee's intent. NOVO Industries. LP v. Micro Molds Corp.. 350 F.3d 1348, 1358 (Fed. Cir. 2003): see also CBT Flint. 654 F.3d at 1358. If a court finds that there are multiple reasonable alternatives, the district court should consider those alternatives from the POSITA's point of view to determine whether the correction is appropriate. CBT Flint. 354 F.3d at 1358 (holding that whether to add "and" between "defect analyze" was obvious to a POSIT A and the district court should have made that correction).

         B. DISPUTED TERMS

         The following table lists the remaining disputed terms, each parties' proposed construction and the relevant patents and claims to each disputed term.

         (Table Omitted) [1]

         (9) "a desaturase [an exogenous desaturase] which desaturates an acyl-CoA Substrate."

          This term appears in asserted claims 1, 6, and 7 of the '250 patent. The term also appears in claims 1 and 7 of the '579 patent and claims 4, 5, 10, 19, and 31-34 of the '330 patent. The Court ORDERED further briefing on this term and took its construction UNDER ADVISEMENT. The dispute on this term is particularly important, whether the identified patents are limited to a vertebrate desaturase or cover desaturases regardless of their origin. Accordingly, the Court will continue to review the existing briefing and the arguments of counsel and the evidence in the record.

         The Court CONTINUES its consideration of this term. When the Court construes the term, if construction is necessary, the Court will ...


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