Butamax(tm) Advanced Biofuels LLC v. Gevo, Inc.

NOTE: This disposition is non-precedential.
United States Court of Appeals
for the Federal Circuit
__________________________
BUTAMAX(TM) ADVANCED BIOFUELS LLC,
Plaintiff/Counterclaim Defendant-
Appellant,
AND
E.I. DUPONT DE NEMOURS AND CO.,
Counterclaim Defendant,
v.
GEVO, INC.,
Defendant/Counterclaimant-
Appellee.
__________________________
2012-1490
__________________________
Appeal from the United States District Court for the
District of Delaware in Case No. 11-CV-0054, Judge Sue
L. Robinson.
_________________________
Decided: November 16, 2012
_________________________
LEORA BEN -AMI, Kirkland & Ellis LLP, of New York,
New York, argued for plaintiff/counterclaim defendant-

-- 1 of 3 --

BUTAMAX ADVANCED BIOFUELS v. GEVO 2
appellant. With her on the brief were CHRISTOPHER T.
JAGOE and BENJAMIN A. LASKY. Of counsel was DANIEL
FORCHHEIMER .
G ERALD J. FLATTMANN , JR., Paul Hastings LLP, of
New York, New York, argued for defen-
dant/counterclaimant-cross appellant. With him on the
brief were PRESTON K. RATLIFF II, J OSEPH M. O’MALLEY,
JR., and ANTHONY M ICHAEL, of New York, New York, and
STEPHEN B. K INNAIRD , of Washington, DC. Of counsel
were BENJAMIN G. D AMSTEDT, LORI R. M ASON , and
M ICHELLE S. RHYU , Cooley LLP, of Palo Alto, California,
and JAMES P. BROGAN , of Broomfield, Colorado.
__________________________
Before RADER, Chief Judge, D YK and WALLACH , Circuit
Judges.
RADER, Chief Judge.
This appeal comes before the court following the de-
nial of a preliminary injunction in a patent infringement
case. This court reviews such decisions for abuse of
discretion. See Abbott Labs., Inc. v. Sandoz, Inc., 566 F.3d
1282, 1298–99 (Fed. Cir. 2009). Based on the record and
this standard of review, this court affirms the denial of
the preliminary injunction. Gevo, Inc. raised a substan-
tial question of validity concerning the asserted patent, a
question which Butamax has failed to show “lacks sub-
stantial merit.” See Amazon.com Inc. v. Barnsandno-
ble.com, Inc., 239 F.3d 1343, 1350–51 (Fed. Cir. 2003).
However, this court’s affirmance should not be read to
endorse the trial court’s very questionable construction of
the claim term “acetohydroxy acid isomeroreductase” –
that is “as an enzyme that is solely NADPH dependent.”

-- 2 of 3 --

BUTAMAX ADVANCED BIOFUELS v. GEVO 3
The trial court should reconsider its construction when it
holds a Markman hearing. Costs of this appeal shall be
borne by the respective parties.
AFFIRMED AND REMANDED

-- 3 of 3 --