Martek Biosciences Corp. v. Nutrinova Inc.
By Debbie Rosenbaum – Edited by Stephanie Young
Martek Biosciences Corp. v. Nutrinova Inc., 2008-1459, -1476 (CAFC Sept. 3, 2009)
On September 3, 2009, the Court of Appeals for the Federal Circuit affirmed the U.S. District Court for the District of Delaware’s jury verdict finding that Martek’s patents were valid and infringed, but reversed the points of error Martek asserted on cross appeal. The Federal Circuit (“CAFC”), sitting as an expanded five-member panel: 1) upheld the district court’s denial of Lonza’s motions for judgment as a matter of law (“JMOL”); 2) found that the district court’s exclusion of Lonza’s prior inventorship evidence was appropriate; 3) upheld the district court’s construction of the term “non-chloride sodium salt”; 4) reversed the district court’s finding that two claims of the ’567 patent were invalid as a matter of law; and 5) expanded the district court’s limited construction of the claim term “animal” in the ’244 patent to include humans.
Briefs and relevant court documents are available here. The District Court’s 2007 decision may be found here. Patently-o and Patent Hawk both provide a discussion of merits. Patently-o and IP Watchdog discuss the significance of the five-judge panel.
Martek and Lonza make and sell products containing docosahexaenoic acid (DHA), an essential omega-3 fatty acid that plays an important role in the development of organs such as the heart, brain, and eyes, and is reported to have many additional health benefits. DHA is manufactured by extracting lipids from fermented microalgae.
Martek Biosciences sued Nutrinova Nutrition Specialties and Food Ingredients GmbH and Lonza, Ltd. for the infringement of a variety of patents. The patents at issue relate to specified processes for growing a mixture of microorganisms that produce high concentrations of DHA. The microorganisms are used in commercial production of human and animal food additives. In 2005, Lonza purchased the DHA-business from Nutrinova. The district court found that Nutrinova and Lonza had infringed certain claims of Martek Biosciences’ patents.
Based on a mixed culture limitation and a food product limitation analysis, the CAFC ruled that the district court did not err when it denied Lonza’s JMOL motion because substantial evidence supported the jury’s finding that the ’594 patent claims are entitled to the priority date of the 1988 application.
As to the ’281 patent claim infringement, the CAFC ruled that because Martek presented substantial evidence supporting the jury’s infringement verdict, the district court did not err when it denied Lonza’s JMOL motion. Lonza tried to argue prior invention, though it could not corroborate its claim. Lonza sought to introduce the testimony of an alleged prior inventor, Dr. Long, under §102(g) for the purpose of invalidating a patent, but Lonza was required to produce evidence corroborating Dr. Long’s testimony. The CAFC agreed with the district court that an abandoned patent application without more was insufficient to corroborate Dr. Long’s testimony.
The CAFC also upheld the district court’s claim construction on the term “non-chloride sodium salt,” as used in the ’281 patent, by allowing that term to encompass sodium hydroxide (NaOH). Additionally, the CAFC found that the ’567 provisions were valid
Finally, the CAFC decided the issue of whether a human is an “animal” within the purview of these patents. The CAFC found that Martek had explicitly defined the term “animal” in the ’244 patent in a way that would include humans: “The term ‘animal’ means any organism belonging to the kingdom Animalia.” ’244 Patent col.5 ll.11-12. On remand, the district court will need to consider whether the patent has been infringed under this broader definition.
Circuit Judge Lourie and Rader, dissenting, focused on statements in the patent that allegedly show that the term “animal” refers to an organism intended for human consumption, therefore flatly excluding humans. The dissent does not disagree with the patentee’s right to define terms, but argues that the other statements limit the term in such a way that it could not reasonably be construed to include humans. The claim discusses raising animals for human consumption, and methods of increasing DHA concentrations in said animals.
The case is also unusual procedurally since the Federal Circuit heard the case as a five-judge panel. However, this fact does not seem to have much legal significance beyond whether such a panel is actually acceptable under 28 U.S.C. 46(b). The court did not give any reasons for expanding the panel.