Bayer Cropscience v. Dow Agrosciences (Fed. Cir. 2017) (non-precedential).
The case here involves a set of genetically modified crops containing the pat gene, which confers resistance to the herbicide glufosinate. Some of the crops include additional genetically modified resistance n a “molecular stack” with additional herbicide resistant genes such as aad-12 ( 2,4-D herbicide tolerance) and dmmg.
The parties here have a long history of licenses and cross-licenses. However, after an accusation of IP theft, in 2012 Bayer sued Dow for infringing its U.S. Patent Nos. 5,561,236, 5,646,024, 5,648,477, 7,112,665, and RE44,962. In response, Dow filed a set of for inter partes reexam requests (still pending)
That litigation was dismissed because of an arbitration agreement – that resulted in a $455 million arbitration award for Bayer for lost profits and reasonable royalty and also an arbitration judgment that the patents were not invalid.
In a non-precedential opinion, the Federal Circuit has affirmed the district court’s confirmation of the arbitration award with the minor exception of interest calculation. Here, the arbitrator awards are powerful becaues they can only be overturned based upon quite “demanding standards” involving “manifestly disregard the law.” A portion of the award included what appears to be post-expiration royalties. However, the Federal Circuit held that the manifest-disregard standard is so high that even those damages cannot be vacated (one of the five patents has not yet expired).
- Decision: bayercropsciencesopinion
- Arbitration Award: bayercropsciencesarbaward
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This case is actually the first time that I have seen the arbitration award submitted to the USPTO as required by 35 U.S.C. § 294(d).
(a) A contract involving a patent or any right under a patent may contain a provision requiring arbitration of any dispute relating to patent validity or infringement arising under the contract. . . .
(d) When an award is made by an arbitrator, the patentee, his assignee or licensee shall give notice thereof in writing to the Director. . . . The Director shall, upon receipt of either notice, enter the same in the record of the prosecution of such patent. If the required notice is not filed with the Director, any party to the proceeding may provide such notice to the Director.
(e) The award shall be unenforceable until the notice required by subsection (d) is received by the Director.
However, anyone inspecting the award will notice substantial redacted portions (including portions relating directly to the validity and infringement issues). I would suggest that submission does not fully comply with the requirements of Section 294.