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

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

January 13, 2020

BASF PLANT SCIENCE, LP, Plaintiff,
v.
COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION, Defendant. COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION, GRAINS RESEARCH AND DEVELOPMENT CORP., AND NUSEED PTY LTD., Plaintiffs-Counterclaimants,
v.
BASF PLANT SCIENCE, LP, AND CARGILL, INCORPORATED, Defendants-Counterdefendants, BASF PLANT SCIENCE GMBH, Counter-Counterclaimant. Disputed Term The Court's Construction

          SUPPLEMENTAL CLAIM CONSTRUCTION OPINION AND ORDER II

          HENRY COKE MORGAN, JR. SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes to the Court on the construction of a disputed patent claim term, referred to herein as "term (9)." The Court advised the parties of its construction before trial of this matter, and hereby issues this Opinion and Order to explain its construction.

         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, and the Court's recent Findings of Fact and Conclusions of Law, doc. 821. Accordingly, this Court will not repeat its recitation of the background of this case; the Court will only briefly summarize the posture of this case as it relates to the instant construction.

         A. THE PATENTS AND TECHNOLOGY

         The patents asserted in this case are directed at plant cells that are genetically modified to have the capability to produce certain long-chain polyunsaturated omega-3 fatty acids ("LC-PUFAs"). Australia's national, government science research agency, the Commonwealth Scientific and Industrial Research Organisation ("CSIRO") is the owner of several United States patents directed at such plants. CSIRO has partnered with two other Australian entities, Nuseed Pty Ltd. ("Nuseed") and the Grains Research and Development Corporation ("GRDC") to commercialize their LC-PUFA product. While CSIRO was researching methods to achieve the recombinant plants, BASF Plant Science L.P. and BASF Plant Science GmbH (collectively, "BASF") was conducting similar research. BASF has partnered with Cargill, Inc. ("Cargill") to market their LC-PUFA product. [1]

         Ordinarily, land plants, such as Brassica napus (the primary target plant by the parties, which is popularly known as rapeseed or canola), lack the capability of producing LC-PUFAs. The parties to this case have taken several steps to modify canola in a way that it can produce LC-PUFAs.

         One of the aspects of the invention at issue is incorporating into land plants a desaturase that is capable of acting on an acyl-CoA substrate. Usually, desaturation in land plants occurs in an enzymatic pool known as the "acyl-PC pool" and elongation occurs in the "acyl-CoA pool." To achieve LC-PUFAs, both elongation and desaturation must occur multiple times at different points on a fatty acid. This results in a cell passing a soon-to-be-LC-PUFA back and forth between the acyl-PC pool and the acyl-CoA pool. The invention at issue incorporates desaturases which are capable of acting on a acyl-CoA substrate to avoid this shifting. Such "acyl-CoA desaturases" can be found in vertebrate organisms, such as a fish, and select invertebrate organisms, such as a microalgae.

         At issue here is whether the invention asserted by Proponents only claims the use of acyl-CoA desaturases from vertebrate organisms.

         B. CLAIM CONSTRUCTION IN THIS CASE

         On April 10, 2019, the Court held a Markman 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 - terms (9) and (10) - under advisement. Doc. 274. On May 15, 2019, the Court entered an Opinion and Order explaining its construction of term (10). Doc. 289.

         The remaining term, "term (9)," was taken under advisement. The Court decided that it declines to construe term (9) and will give the term its PLAIN AND ORDINARY MEANING, WITH NO "VERTEBRATE LIMITATION." At a motions hearing held on September 24, 2019, the Court advised parties that the Court would not construe term (9).

         II. CLAIM CONSTRUCTION

         A. LEGAL PRINCIPLES OF ...


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