In previous posts I discussed the patent infringement suit brought by Danish biotech Novozymes against its rival Danisco (recently acquired by DuPont). 

Specifically, Novozymes sued Danisco in May 2010 in the Western District of Wisconsin, alleging infringement of U.S. Patent No. 7,713,723 (’723 Patent).

The ’723 Patent is entitled “Alpha amylase mutants with altered properties” and is directed to variants of certain alpha amylases that exhibit altered stability under high temperatures, low pH and other conditions.  The patented variants can be used for starch conversion in ethanol production.

In May 2011 the court denied Danisco’s motion for summary judgment of invalidity, ruling that the defendant did not meet its burden of proving insufficient written description as a matter of law.

Shortly thereafter the court granted partial summary judgment that Danisco’s Spezyme Alpha WB, GC 133, and Clearflow WB enzyme products infringe the ’723 Patent (Novozymes_Infringement_Order).

The jury recently awarded Novozymes about $18.3 million in damages for the infringement, including $16.7 million for lost profits for certain enzyme products and $1.6 million in reasonable royalties for other products for which Novozymes did not prove lost profits (Novozymes_Verdict). 

The jury further found that Danisco’s infringement of the ’723 was willful, although it found Novozymes did not prove infringement of Danisco’s whole broth products.

Biofuels patent litigation has been heating up recently.  GreenShift has been the most active, asserting an ethanol processing patent against a host of ethanol producers in eleven cases consolidated in Indiana. 

There has been tremendous growth recently in enzymes, processing technologies, and genetically-engineered microorganisms for biofuels.  Like those microorganisms, I’m sure the green patent battles will continue to multiply.

A previous post reported on the consolidation of a number of patent infringement suits brought by GreenShift and its New York subsidiary, GS Cleantech, against a host of ethanol producers across the midwestern United States.

GreenShift has accused the defendants of infringing U.S. Patent No. 7,601,858 (’858 Patent), entitled “Method of processing ethanol byproducts and related subsystems.”

The ’858 Patent is directed to methods of recovering oil from byproducts of ethanol production using the process of dry milling, which creates a waste stream comprised of byproducts called whole stillage.

According to the ’858 Patent, whole stillage contains valuable oil but prior processes for recovering this oil have been expensive or inefficient.

GreenShift’s patented method includes mechanically separating the whole stillage into distillers wet grains and thin stillage and then running the thin stillage into an evaporator to form a concentrated byproduct, or syrup.  The syrup is fed through a second centrifuge, which separates usable corn oil from the syrup.

In September 2010 the Judicial Panel on Multidistrict Litigation granted GreenShift’s motion to consolidate the 11 actions in the Southern District of Indiana.

Recently, the court issued a “Markman” decision (GS-Markman-Order), a claim construction order that provides the court’s interpretations of key disputed terms of the patent claims.

There were several terms of the ’858 Patent claims at issue, the most important of which were  ”concentrated byproduct”, “concentrate”, “thin stillage concentrate” and ”concentrated thin stillage” (collectively construed by the court as “the Concentrate Terms”), as well as ”mechanically processing”.

In one instance, the court adopted the defendants’ narrower proposed construction.  In the other, it went with GreenShift’s broader proposed definition.

The question in interpreting the Concentrate Terms was essentially what the byproduct or concentrated substance is.  GreenShift argued that it is any product consisting of water, oil and solids, while the defendants contended it should be limited to a syrup.

The court agreed with the defendants and construed the Concentrate Terms to mean “syrup containing water, oil, and solids resulting from the concentrating or evaporating process.” 

According to the court, this interpretation “naturally aligns” the claim language with the description in the ’858 Patent, which uses the terms “concentrate” and “syrup” interchangeably to identify the composition described by the Concentrate Terms.

The court construed the term “mechanically processing” to mean “to subject to a mechanical device (or devices) to effect a particular result.”  Despite defendants’ contention that the term means “processing with a centrifuge,” the court agreed with GreenShift that the plain meaning of the term requires a broader construction.

As discussed before in this space, the claim construction phase of patent litigation is extemely important, often leading to settlement or dismissal on summary judgment.

With what appears to be a mixed ruling leaving no clear winner, it will be interesting to see what happens next in this major biofuels litigation.

Novozymes is a Danish biopharmaceutical company that develops enzymes for a variety of applications, including for use in production of biofuels.

Last month Novozymes sued an Illinois enzyme distributor called CTE Global (CTE) in federal court in Chicago, alleging infringement of U.S. Patent Nos. 6,255,084 (’084 Patent) and 7,060,468 (’468 Patent).

The ’084 and ’468 Patents are entitled “Thermostable glucoamylase” and are directed to an isolated glucoamylase enzyme which has higher thermal stability than prior glucoamylases.  The patents also claim starch conversion processes using the enzyme. 

Glucoamylases are used to convert hydrolyzed corn starch to glucose.

The patented enzyme was isolated, purified and characterized from a strain of Talaromyces emersonii, a thermophilic fungus.

According to the ’084 and ’468 Patents, the half-life of the isolated enzyme is between 100 and 140 minutes at 70 degrees Celsius, an improvement over prior art glucoamylases.

Novozymes’ complaint (Novozymes-CTE_Complaint) alleges that CTE’s glucoamylase products GLUCOAMYL L 706+ and GLUCOAMYL LG20, used for producing fuel ethanol, infringe the ’084 and ’468 Patents.

Novozymes is currently involved in another biofuels enzyme patent suit as well.  The company has asserted another enzyme patent against its Danish rival Danisco – U.S. Patent No. 7,713,723 – and survived a summary judgment motion challenging the validity of that patent.