Dow asks SCOTUS to review $445m award dispute
Agriculture company Dow has asked the US Supreme Court to review a dispute centring on damages for infringement of patents related to genetically engineered soybeans.
Bayer had sued Dow in 2012, alleging that Dow had infringed US patent numbers 5,561,236; 5,646,024; 5,648,477; and 7,112,665.
All of the patents are titled “Genetically engineered plant cells and plants exhibiting resistance to glutamine synthetase inhibitors, DNA fragments and recombinants for use in the production of said cells and plants”.
Dow appealed against a decision at the US District Court for the Eastern District of Virginia, in which the court had upheld a decision from an international arbitration tribunal on a contract claim under French law and patent infringement claims under US laws.
The tribunal had awarded Bayer approximately $455 million, including damages for breach of contract and patent infringement, and Dow was ordered to pay a rate for post-award interest of 8%.
In March, the US Court of Appeals for the Federal Circuit partially affirmed the lower court’s ruling.
Dow has now appealed against the decision, filing a petition for a writ of certiorari with the Supreme Court on Monday, September 11.
The agriculture company claimed that the Federal Circuit had precluded a mandatory second-look review of whether the award violated public policy.
“International arbitration of federal statutory claims poses a threat to US public policy that can be mitigated only by independent judicial review”, said Dow.
It added that federal statutory claims are submitted to international arbitral tribunals under the New York Convention on the “express understanding that US courts will have ‘the opportunity at the award enforcement stage’ to take a second look at the arbitrators’ decision”.
The New York Convention is a United Nations Convention outlining how to settle disputes over patent rights between different countries.
Dow claimed that the Federal Circuit’s decision upheld the $455 million award “based on duplicative and expired patent rights”, the enforcement of which violates public policy that patent monopolies may extend only for a limited time.
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