United States District Court, D. Delaware
B. Blumenfeld and Jeremy A. Tigan, MORRIS, NICHOLS, ARSHT
& TUNNELL LLP, Wilmington; DE; Robert Maier (argued),
Jennifer C. Tempesta (argued), Michael E. Knierirn, Carolyn
Pirraglia, and Yi Han, BAKER BOTTS LLP, New York, NY;
Attorneys for Plaintiffs (18-129).
Stephen B. Brauerman and Sara E. Bussiere, BAYARD, P.A.,
Wilmington, DE; Ajit Vaidya and Ken Sheets, KENEALY VAIDYA
LLP, Washington, DC; Attorneys for Plaintiffs (18-914).
C. Phillips, Jr. and David A. Bilson, PHILLIPS, GOLDMAN,
MCLAUGHLIN & HALL, P.A., Wilmington, DE; Kurt A. Mathas
(argued) and Claire A. Fundakowski, WINSTON & STRAWN LLP,
Chicago, IL; Noorossadat Torabi, WINSTON & STRAWN LLP,
Menlo Park, CA; Attorneys for Defendants Associated British
Foods, PLC, et al.
Moskow-Schnoll, Brittany M. Giusini, and Brian S.S. Auerbach,
BALLARD SPAHR LLP, Wilmington, DE; Robert R. Baron, Jr.
(argued) and Marc S. Segal, BALLARD SPAHR LLP, Philadelphia,
PA; Alan White, BALLARD SPAHR LLP, Atlanta, GA; Attorneys for
Defendants E.I. Dupont de Nemours and Company., et al.
ANDREWS, U.S. DISTRICT JUDGE
before the Court is the issue of claim construction of
multiple terms in U.S. Patent Nos. 6, 451, 572 ("the
'572 patent"), 7, 026, 150 ("the '150
patent"), 7, 312, 063 ("the '063 patent), 7,
829, 318 ("the '318 patent"), 8, 455, 232
("the '232 patent"), and 8, 993, 300 ("the
'300 patent"). The Court has considered the
Parties' Joint Claim Construction Briefs. (C.A. No.
18-129, D.I. 62; C.A. No. 18-914, D.I. 65). At the
parties' request, the Markman hearings in these actions
were combined. (D.I. 55). The Court heard oral argument on
June 6, 2019. (Hr'g Tr.).
is a bedrock principle of patent law that the claims of a
patent define the invention to which the patentee is entitled
the right to exclude." Phillips v. AWE Corp.,
415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (internal
quotation marks omitted). '"[T]here is no magic
formula or catechism for conducting claim construction.'
Instead, the court is free to attach the appropriate weight
to appropriate sources 'in light of the statutes and
policies that inform patent law.'" SoftView LLC
v. Apple Inc., 2013 WL 4758195, at *1 (D. Del. Sept. 4,
2013) (quoting Phillips, 415 F.3d at 1324)
(alteration in original). When construing patent claims, a
court considers the literal language of the claim, the patent
specification, and the prosecution history. Markman v.
Westview Instruments, Inc., 52 F.3d 967, 977-80 (Fed.
Cir. 1995) (en banc), aff'd, 517 U.S. 370
(1996). Of these sources, "the specification is always
highly relevant to the claim construction analysis. Usually,
it is dispositive; it is the single best guide to the meaning
of a disputed term." Phillips, 415 F.3d at 1315
(internal quotation marks omitted).
words of a claim are generally given their ordinary and
customary meaning. . . . [Which is] the meaning that the term
would have to a person of ordinary skill in the art in
question at the time of the invention, i.e., as of the
effective filing date of the patent application."
Id. at 1312-13 (citations and internal quotation
marks omitted). "[T]he ordinary meaning of a claim term
is its meaning to [an] ordinary artisan after reading the
entire patent." Id. at 1321 (internal quotation
marks omitted). "In some cases, the ordinary meaning of
claim language as understood by a person of skill in the art
may be readily apparent even to lay judges, and claim
construction in such cases involves little more than the
application of the widely accepted meaning of commonly
understood words." Id. at 1314.
court relies solely upon the intrinsic evidence-the patent
claims, the specification, and the prosecution history-the
court's construction is a determination of law. See
Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831,
841 (2015). The court may also make factual findings based
upon consideration of extrinsic evidence, which
"consists of all evidence external to the patent and
prosecution history, including expert and inventor testimony,
dictionaries, and learned treatises." Phillips,
415 F.3d at 1317-19 (internal quotation marks omitted).
Extrinsic evidence may assist the court in understanding the
underlying technology, the meaning of terms to one skilled in
the art, and how the invention works. Id. Extrinsic
evidence, however, is less reliable and less useful in claim
construction than the patent and its prosecution history.
claim construction is persuasive, not because it follows a
certain rule, but because it defines terms in the context of
the whole patent." Renishaw PLC v. Marposs
Societa' per Azioni, 158 F.3d 1243, 1250 (Fed. Cir.
1998). It follows that "a claim interpretation that
would exclude the inventor's device is rarely the correct
interpretation." Osram GMBH v. Int'l Trade
Comm'n, 505 F.3d 1351, 1358 (Fed. Cir. 2007)
(citation and internal quotation marks omitted).
Huvepharma EOOD and Huvepharma, Inc. brought suit against
Defendants Associated British Foods, PLC, AB Vista, Inc., PGP
International Corporation, ABITEC Corporation, AB Enzymes,
INC., and AB ENZYMES GmbH ("the ABF Defendants") on
January 23, 2018 asserting infringement of the '572
patent, the' 150 patent, the '063 patent, the
'318 patent, the '232 patent, and the '300 patent
("the Asserted Patents"). (D.I. 1). Plaintiffs
brought suit against Defendants E.I. Du Pont de Nemours and
Company, DuPont Industrial Biosciences USA, LLC, Danisco USA,
Inc., and Danisco U.S. Inc. ("the DuPont
Defendants") on June 20, 2018 asserting the'150
patent, the'063 patent, and the'232 patent. (C.A.
18-914, D.1.1). The Asserted Patents share a common
specification and are related to "a method of producing
phytase in yeast by introducing a heterologous gene which
encodes a protein or polypeptide with phytase/acid
phosphatase activity into a yeast strain and expressing that
gene." ('150 patent, col. 2:57-60).
parties have three common disputed terms. (D.I. 62 at 13, 52,
69; C.A. 18-914, D.I. 65 at 13, 51, 67). Plaintiffs and the
ABF Defendants dispute an additional term in claims 8-9 of
the '300 patent. (D.I. 62 at 72). Plaintiffs and the
DuPont Defendants dispute an additional term in claims 1 and
28 of the '150 patent, claim 1 of the '063 patent,
and claim 1 of the '232 patent. (C.A. 18-914, D.I. 65 at
69). Claims 1 and 2 of the '150 patent and claims 1 and
6-8 of the '300 patent are representative.
1 and 2 of the '150 patent read as follows:
1. A method of producing phytase in yeast comprising:
providing a heterologous polynucleotide from non-yeast
organism which encodes a protein or polypeptide comprising
either a PhyA phytase or an AppA phytase;
expressing the protein of polypeptide in a yeast; and
isolating the expressed protein or polypeptide,
wherein said protein or polypeptide catalyzes the release of
phosphate from phytate and has increased thermostability as
compared to that of said protein or polypeptide expressed in
a non-yeast host cell.
2. The method according to claim 1, wherein the heterologous
polynucleotide is an isolated appA polynucleotide.
('150 patent, els. 1-2) (disputed terms italicized).
Claims 1 and 6-8 of the '300 patent read as follows:
1. A method of producing a phytase in fungal cells, the
method comprising: providing a polynucleotide encoding an
Escherichia coliphytase; expressing the
polynucleotide in the fungal cells; and isolating the
expressed Escherichia coli phytase wherein the
Escherichia coli phytase catalyzes the release of
phosphate from phytate.
6. The method of claim 1 wherein the fungal cells are
cultured in a growth medium.
7. The method of claim 6 wherein the Escherichia coli
phytase is secreted from the fungal cells into ...