In Butamax Advanced Biofuels LLC v. Gevo, Inc., C.A. Nos. 12-1036-SLR; 12-1200-SLR; 12-1300-SLR (D. Del. Aug. 3, 2015), Judge Sue L. Robinson considered the parties’ various dispositive motions on infringement and invalidity. The Court granted Defendants’ motion as to invalidity for one patent, based on indefiniteness, as well as their motion for summary judgment of no willfulness.
As to one patent, the Court concluded that the asserted claims’ “% identity” language was indefinite. See id. at 4-13. It therefore granted summary judgment as to invalidity and did not consider infringement, as the indefiniteness of the claims prevented a “meaningful infringement analysis.” Id. at 13.
As to another group of patents, however, the Court found issues of material fact remained as to validity and infringement. As to questions of enablement and written description, it noted that “[t]he art in the case at bar is generally unpredictable. The disagreement between the experts on whether one of ordinary skill could practice the invention without undue experimentation and whether the inventors had possession of the invention present genuine disputes of material fact better left to the province of the jury.” Id. at 18. Similarly, as to infringement, it concluded that “the expert opinions are in direct conflict, therefore, there are genuine issues of material fact as to” infringement, and thus denied Plaintiff’s motion for summary judgment of infringement. Id. at 19.
As to willful infringement, the Court granted Defendants’ motion, noting that the Court had granted their motion as to indefiniteness one one patent, and Defendants had “at minimum . . . credible and reasonable theories supported by expert testimony” for invalidity and non-infringement as to the other patents. Id. at 20-21. Additionally, while “[t]he court recognize[d] [Plaintiff’s] arguments against summary judgment of no willfulness based on the concurring opinions in both Halo Elecs., Inc. v. Pulse Elecs.,Inc., 769 F.3d 1371, 1383 (Fed.Cir.2014) (O’Malley, J., concurring), and Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc., 776 F.3d 837, 847 (Fed. Cir. 2015) (Hughes, J., concurring), calling for a review of the willfulness jurisprudence. . . . the court decline[d] to depart from the application of the controlling law, Seagate’s two-part test, until such time as the Federal Circuit does so.” Id. at 21 n.18.