Dow secures attorneys’ fees from Bayer in Federal Circuit appeal
Dow Agrosciences has secured attorneys’ fees from Bayer in a patent dispute, after Bayer failed in its appeal to the US Court of Appeals for the Federal Circuit.
The Federal Circuit handed down its judgment on Friday, March 17, affirming a decision from the US District Court for the District of Delaware.
“Because the district court did not abuse its discretion in finding the case exceptional and awarding fees, we affirm,” said the court.
This was a second appeal to the Federal Circuit in the patent infringement lawsuit between the parties, which was related to genetically engineered soybeans.
The first appeal centred on the merits of a contractual dispute where the parties disagreed over the scope of a licence of the patents-in-suit.
Bayer had granted MS Tech, Dow’s business partner, a broad licence to commercialise and sub-license the soybean technology.
MS Tech then sublicensed to Dow the patent rights it had received from Bayer, and when Bayer sued Dow for patent infringement, Dow raised the MS Tech sub-licence as an affirmative defence.
The district court backed Dow, followed by the Federal Circuit.
The case then returned to the district court, where Dow was awarded attorneys’ fees by a magistrate judge, who issued a report declaring a “firm conviction that this is an ‘exceptional case’” and recommending fee-shifting under 35 USC, section 285.
Bayer appealed, arguing that the district court had abused its discretion in awarding fees.
In the ruling, the Federal Circuit said: “We have considered Bayer’s remaining arguments and find them unpersuasive to show that the district court abused its discretion.”
It added: “We hold that the district court did not abuse its discretion in determining that, under the totality of the circumstances, this was an exceptional case, and we affirm the district court’s grant of … fees.”
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