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Huvepharma EOOD and Huvepharma, Inc. v. Associated British Foods, PLC

United States District Court, D. Delaware

June 21, 2019

HUVEPHARMA EOOD and HUVEPHARMA, INC., Plaintiff,
v.
ASSOCIATED BRITISH FOODS, PLC, AB VISTA, INC., PGP INTERNATIONAL CORPORATION, ABITEX CORPORATION, AB ENZYMES, INC., and AB ENZYMES GMBH, Defendants. HUVEPHARMA EOOD and HUVEPHARMA, INC., Plaintiffs,
v.
E.I. DUPONT DE NEMOURS AND COMPANY, DUPONT INDUSTRIAL BIOSCIENCES, USA LLC, DANISCO USA INC., and DANISCO U.S. INC., Defendants.

          Jack 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).

          John 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.

          Beth 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.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE

         Presently 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).[1] 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.).

         I. LEGAL STANDARD

         "It 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).

         "[T]he 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.

         When a 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. Id.

         "A 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).

         II. BACKGROUND

         Plaintiffs 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).

         The 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.

         Claims 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 ...

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