Federal Circuit affirms district court’s Bayer ruling

The US Court of Appeals for the Federal Circuit has partially affirmed a ruling by a district court in a patent dispute between Bayer and Dow Agrosciences.

Dow, which had been sued by Bayer in 2012, appealed against the US District Court for the Eastern District of Virginia’s decision to affirm a patent infringement ruling.

In 2012 Bayer sued Dow for infringing US patent numbers 5,561,236; 5,646,024; 5,648,477; and 7,112,665.

They are all 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”.

The case involves an international arbitration tribunal’s decision on a contract claim under French law and patent infringement claims under US laws.

The tribunal 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 the appeal, which was ruled on yesterday, March 1, the Federal Circuit concluded that the district court correctly confirmed the award, “but abused its discretion regarding post-judgment interest”.

The Federal Circuit said in its ruling: “We modify the judgment to state that interest from the date of the district court’s judgment accrues at the federal statutory rate.”

Between November 2014 and August 2015, Dow filed six requests for inter partes reexamination of Bayer’s patents, alleging that certain claims of the patents were invalid for obviousness.

So far, four reviews have been finalised and rejected. The other two are pending and, according to the Federal circuit, do not alter this decision.