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September 7, 2013

The Greed Gene

Bayer CropScience sued Dow Agrosciences over a claim to bogus genetics. Its assertion was found not infringed; affirmed on appeal. (CAFC 2103-1002)

When the inventors applied for the patent at issue, they had sequenced one gene coding for one enzyme, using a test purportedly capable of finding other, similar genes. In writing its claims, the owner - now Bayer CropScience AG - decided to claim a broad category based on the function of the particular enzyme, defining the category by using a term with an established scientific meaning. In doing so, Bayer got ahead of the science: experiments had not confirmed that the term even applied to the particular enzyme whose gene Bayer's inventors had sequenced. Soon science showed that it did not, and Bayer knew as much years before its patent issued - but did not change its claim language. When it ultimately sued Dow AgroSciences for infringement, Bayer recognized that the term used, in its established scientific meaning, did not cover the accused product (itself different from the particular enzyme whose gene Bayer's inventors had sequenced), so it argued for a broad functional claim construction.

Posted by Patent Hawk at September 7, 2013 3:34 PM | Infringement