One of the more powerful new petitions for writ of certiorari is the case of Dow AgroSciences, LLC v. Bayer CropScience AG, Docket No. 17-372. Although the question presented – focusing on arbitration of patent cases – does not strike to the core of patent law doctrine, it is one of the more likely to be granted certiorari.
The petition begins: International arbitration of federal statutory claims poses a threat to U.S. public policy that can be mitigated only by independent judicial review. [DowBayerPetition].
The case here involves a set of crops genetically modified to be resistant to the herbicide glufosinate. Some of the crops include additional genetically modified resistance in a “molecular stack” with additional herbicide resistant genes such as aad-12 (2,4-D herbicide tolerance) and dmmg.
Bayer sued Dow for infringement, but a prior agreement forced to the case to arbitration and a $455 arbitration award for Bayer that was affirmed by the Federal Circuit.
Now, Dow has petitioned the Supreme Court with the following question presented:
The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), as incorporated into Chapter 2 of the Federal Arbitration Act (“FAA”), 9 U.S.C. 201 et seq., authorizes a U.S. court to decline recognition and enforcement of an arbitral award that “would be contrary to the public policy” of the United States.
Here, recognition and enforcement of a $455 million arbitral award based on duplicative and expired patents is contrary to the U.S. public policy that patents are granted only for “limited Times.” But the Federal Circuit held that award enforceable, ruling that a court may not entertain a public-policy challenge in the absence of a prior judicial decision on nearly identical facts.
The question presented is:
Whether a federal court must independently determine whether recognition and enforcement of an arbitral award under the New York Convention would be contrary to the public policy of the United States.
Dow AgroSciences, LLC v. Bayer CropScience AG, 2017 WL 4022790.
Unlike many areas of law, the Patent Act includes a particular provision recognizing voluntary arbitration of patent dispute. 35 U.S.C. 294. The provision indicates that the Federal Arbitration Act (Title 9) should be followed “to the extent such title is not inconsistent with this section.” The statute particularly provides that the ordinary defenses to patent infringement “shall be considered by the arbitrator if raised.”