Case 1:12-cv-01202-SLR Document 1 Filed 09/25/12 Page 1 of 9 PageID #: 1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`GEVO, INC.,
`
`
`
`
`v.
`
`Plaintiff,
`
`
`BUTAMAX(TM) ADVANCED BIOFUELS
`LLC, a Delaware limited liability company,
`and E.I. DUPONT DE NEMOURS AND CO.,
`a Delaware corporation,
`
`
`Defendants.
`
`
`
`
`)
`
`)
`
`)
`
`)
`
`)
`) C.A. No.
`)
`
`)
`JURY TRIAL DEMANDED
`)
`)
`)
`)
`
`
`
`
`COMPLAINT
`
`Plaintiff Gevo, Inc. (“Gevo”), by its attorneys, for its Complaint against Defendants
`
`Butamax(TM) Advanced Biofuels LLC (“Butamax”) and E.I. DuPont de Nemours and Co.
`
`(“DuPont”), alleges as follows:
`
`THE PARTIES
`
`1.
`
`Gevo is a corporation organized and existing under the laws of the state of
`
`Delaware, with its principal place of business in Englewood, Colorado.
`
`2.
`
`Butamax is a limited liability corporation organized and existing under the laws of
`
`the state of Delaware, with its principal place of business in Wilmington, Delaware. Butamax is
`
`jointly owned by DuPont and BP Biofuels North America LLC, an indirect subsidiary of BP
`
`p.l.c. (“BP”).
`
`3.
`
`DuPont is a corporation organized and existing under the laws of the state of
`
`Delaware, with its principal place of business in Wilmington, Delaware.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`GEVO, INC.,
`
`
`
`
`v.
`
`Plaintiff,
`
`
`BUTAMAX(TM) ADVANCED BIOFUELS
`LLC, a Delaware limited liability company,
`and E.I. DUPONT DE NEMOURS AND CO.,
`a Delaware corporation,
`
`
`Defendants.
`
`
`
`
`)
`
`)
`
`)
`
`)
`
`)
`) C.A. No.
`)
`
`)
`JURY TRIAL DEMANDED
`)
`)
`)
`)
`
`
`
`
`COMPLAINT
`
`Plaintiff Gevo, Inc. (“Gevo”), by its attorneys, for its Complaint against Defendants
`
`Butamax(TM) Advanced Biofuels LLC (“Butamax”) and E.I. DuPont de Nemours and Co.
`
`(“DuPont”), alleges as follows:
`
`THE PARTIES
`
`1.
`
`Gevo is a corporation organized and existing under the laws of the state of
`
`Delaware, with its principal place of business in Englewood, Colorado.
`
`2.
`
`Butamax is a limited liability corporation organized and existing under the laws of
`
`the state of Delaware, with its principal place of business in Wilmington, Delaware. Butamax is
`
`jointly owned by DuPont and BP Biofuels North America LLC, an indirect subsidiary of BP
`
`p.l.c. (“BP”).
`
`3.
`
`DuPont is a corporation organized and existing under the laws of the state of
`
`Delaware, with its principal place of business in Wilmington, Delaware.
`
`
`
`Case 1:12-cv-01202-SLR Document 1 Filed 09/25/12 Page 2 of 9 PageID #: 2
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`4.
`
`On information and belief, Butamax was formed in July 2009 for the purpose of
`
`commercializing technology that DuPont and BP have been jointly developing since 2004.
`
`5.
`
`On information and belief, individuals employed by DuPont engage in research
`
`and development activities related to the subject matter of this action.
`
`6.
`
`On information and belief, Butamax engages in research and development related
`
`to the subject matter of this action using facilities located in the DuPont Experimental Station
`
`which is located in Wilmington, Delaware.
`
`7.
`
`On information and belief, DuPont directs Butamax to engage in research and
`
`development activities related to the subject matter of this action, and controls the manner in
`
`which these activities are performed.
`
`JURISDICTION AND VENUE
`
`8.
`
`This action arises under the patent laws of the United States, including Title 35,
`
`United States Code. This court has jurisdiction over the subject matter of this action under 28
`
`U.S.C. §§ 1331 and 1338(a).
`
`9.
`
`This court has personal jurisdiction over Butamax because Butamax is a Delaware
`
`limited liability company and has committed acts within Delaware and this judicial district which
`
`give rise to this action, including ongoing research and development activities related to the
`
`subject matter of this complaint. Butamax maintains continuous and systematic contacts with the
`
`forum such that the exercise of jurisdiction over Butamax would not offend traditional notions of
`
`fair play and substantial justice.
`
`
`
`-2-
`
`
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`Case 1:12-cv-01202-SLR Document 1 Filed 09/25/12 Page 3 of 9 PageID #: 3
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`10.
`
`This court has personal jurisdiction over DuPont because DuPont is incorporated
`
`in Delaware and has committed acts within Delaware and this judicial district which give rise to
`
`this action, including ongoing research and development activities related to the subject matter of
`
`this complaint. DuPont maintains continuous and systematic contacts with the forum such that
`
`the exercise of jurisdiction over DuPont would not offend traditional notions of fair play and
`
`substantial justice.
`
`11.
`
`Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b) and 1400(b).
`
`THE PATENT-IN-SUIT
`
`12.
`
`On September 25, 2012, United States Patent No. 8,273,565 (“the ’565 Patent”)
`
`entitled “Methods of Increasing Dihydroxy Acid Dehydratase Activity to Improve Production of
`
`Fuels, Chemicals, and Amino Acids” issued to Jun Urano, Catherine Asleson Dundon, Peter
`
`Meinhold, Reid M. Renny Feldman, Aristos Aristidou, Andrew Hawkins, Thomas Buelter,
`
`Matthew Peters, Doug Lies, Stephanie Porter-Scheinman, Christopher Smith, and Lynne Albert.1
`
`The entire right, title, and interest to the ’565 Patent has been assigned to Gevo. Gevo is the
`
`owner and possessor of all rights pertaining to the ’565 Patent.
`
`13.
`
`On February 2, 2012, United States Patent Publication No. US 2012/0028322 A1
`
`(“the ’322 Publication”) was published. A true and correct copy of the ’322 Publication is
`
`attached hereto as Exhibit 2. The application that forms the basis of the ’322 Publication issued
`
`as the ’565 Patent, and the ’322 Publication includes claims that are identical or substantially
`
`identical to claims of the ’565 Patent.
`
`
`1 The ’565 Patent issued on September 25, 2012, as shown on the September 5, 2012 Issue
`Notification attached as Exhibit 1, however, a copy is not yet available. We will file a copy of
`the patent once it becomes available.
`
`
`
`-3-
`
`
`
`Case 1:12-cv-01202-SLR Document 1 Filed 09/25/12 Page 4 of 9 PageID #: 4
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`14.
`
`On information and belief, Butamax and DuPont had knowledge of the ’322
`
`Publication prior to the issuance of the ’565 Patent.
`
`15.
`
`The ’565 Patent and the ’322 Publication disclose and claim recombinant yeast
`
`microorganisms comprising a recombinantly overexpressed polynucleotide encoding a
`
`dihydroxy acid dehydratase (DHAD), wherein the microorganism is engineered to comprise at
`
`least one inactivated monothiol glutaredoxin selected from the group consisting of GRX3 and
`
`GRX4.
`
`16.
`
`On information and belief, Butamax and/or DuPont produce isobutanol through
`
`the deletion, mutation, and/or substitution of either of the endogenous genes Grx3 and/or Grx4 in
`
`recombinant yeast strains, whereby increased Fe-S cluster biosynthesis results in increased
`
`specific activity of the dihidroxy-acid dehydratase polypeptide (DHAD) and increased output of
`
`associated biosynthetic pathways responsible for the production of branched chain amino acids,
`
`pantothenic acid, and isobutanol. Several examples of how this is done are described in
`
`U.S. Patent Publication No. 2012/0064561 A1, which, on information and belief, is assigned to
`
`Butamax and lists inventors who are affiliated with Butamax and/or DuPont.
`
`COUNT I
`
`Infringement of the ’565 Patent Against Butamax and DuPont
`
`
`
`17.
`
`Gevo incorporates by reference the allegations set forth in paragraphs 1-16 of this
`
`Complaint.
`
`18.
`
`On information and belief, Butamax is infringing and will infringe, directly and/or
`
`indirectly, either literally or under the doctrine of equivalents, one or more claims of the ’565
`
`Patent by performing and/or directing others to perform the methods described in paragraph 16
`
`
`
`-4-
`
`
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`Case 1:12-cv-01202-SLR Document 1 Filed 09/25/12 Page 5 of 9 PageID #: 5
`
`without Gevo’s authorization. Gevo believes it will develop further evidence for this allegation
`
`after a reasonable opportunity for further investigation and discovery. On information and
`
`belief, Butamax’s infringement pursuant to 35 U.S.C. § 271 will continue unless Butamax’s
`
`conduct is enjoined.
`
`19.
`
`On information and belief, DuPont is infringing or will infringe, directly and/or
`
`indirectly, either literally or under the doctrine of equivalents, one or more claims of the ’565
`
`Patent by performing and/or directing others to perform the methods described in paragraph 16
`
`without Gevo’s authorization. Gevo believes it will develop further evidence for this allegation
`
`after a reasonable opportunity for further investigation and discovery. On information and
`
`belief, DuPont’s infringement pursuant to 35 U.S.C. § 271 will continue unless DuPont’s
`
`conduct is enjoined.
`
`20.
`
`On information and belief, Butamax and DuPont’s activities have already
`
`occurred or are occurring and will continue unless enjoined by this Court. Butamax and
`
`DuPont’s infringement of the ’565 Patent causes harm to Gevo. Thus, a real and substantial
`
`controversy exists between Gevo, on one hand, and Butamax and DuPont on the other.
`
`21.
`
`As a result of Butamax and/or DuPont’s infringement of the ’565 Patent, Gevo
`
`has suffered irreparable harm for which Gevo has no adequate remedy at law.
`
`COUNT II
`
`Infringement of Gevo’s Provisional Rights in the ’565 Patent Against Butamax and DuPont
`
`Gevo incorporates by reference the allegations set forth in paragraphs 1-21 of this
`
`22.
`
`Complaint.
`
`
`
`-5-
`
`
`
`Case 1:12-cv-01202-SLR Document 1 Filed 09/25/12 Page 6 of 9 PageID #: 6
`
`23.
`
`On information and belief, pursuant to 35 U.S.C. § 154(d), Butamax has directly
`
`and/or indirectly infringed, either literally or under the doctrine of equivalents, Gevo’s
`
`provisional patent rights in one or more of the claims of the ’565 Patent by performing and/or
`
`directing others to perform the methods described in paragraph 16 without Gevo’s authorization.
`
`Gevo believes it will develop further evidence for this allegation after a reasonable opportunity
`
`for further investigation and discovery.
`
`24.
`
`On information and belief, pursuant to 35 U.S.C. § 154(d), DuPont has directly
`
`and/or indirectly infringed, either literally or under the doctrine of equivalents, Gevo’s
`
`provisional patent rights in one or more of the claims of the ’565 Patent by performing and/or
`
`directing others to perform the methods described in paragraph 16 without Gevo’s authorization.
`
`Gevo believes it will develop further evidence for this allegation after a reasonable opportunity
`
`for further investigation and discovery.
`
`25.
`
`Butamax and/or DuPont’s infringement of Gevo’s provisional rights in the claims
`
`of the ’565 Patent harmed Gevo. Thus, a real and substantial controversy exists between Gevo,
`
`on one hand, and Butamax and DuPont on the other.
`
`26.
`
`As a result of Butamax and/or DuPont’s infringement of Gevo’s provisional rights
`
`in the claims of the ’565 Patent, Gevo is entitled to recover a reasonable royalty pursuant to 35
`
`U.S.C. § 154(d)(1).
`
`COUNT III
`
`Indirect Infringement of the ’565 Patent Against Butamax and DuPont
`
`Gevo incorporates by reference the allegations set forth in paragraphs 1-26 of this
`
`27.
`
`Complaint.
`
`
`
`-6-
`
`
`
`Case 1:12-cv-01202-SLR Document 1 Filed 09/25/12 Page 7 of 9 PageID #: 7
`
`28.
`
`On information and belief, Butamax and DuPont are and will be actively and
`
`knowingly assisting with, participating in, contributing to, and/or directing others to perform the
`
`method described in paragraph 16 without Gevo’s authorization. On information and belief,
`
`Butamax and/or DuPont are aware of the application that issued as the ’565 Patent and are aware
`
`that the ’565 Patent would issue while they are engaging in these knowing and purposeful
`
`activities referred to above. On information and belief, the method described in paragraph 16 is
`
`not a staple article or commodity of commerce suitable for substantial non-infringing uses, and is
`
`known by Butamax and/or DuPont to be especially made or especially adapted for use in
`
`infringement of the ’565 Patent.
`
`29.
`
`On information and belief, under 35 U.S.C. § 271(b), Butamax and/or DuPont are
`
`inducing and will induce the infringement of the ’565 Patent by actively and knowingly aiding
`
`and abetting others to perform the method described in paragraph 16 without Gevo’s
`
`authorization and with knowledge that the induced acts constitute infringement of the ’565
`
`Patent.
`
`30.
`
`On information and belief, under 35 U.S.C. §§ 154(d) and 271(b), Butamax
`
`and/or DuPont have induced or will induce others to infringe Gevo’s provisional rights in the
`
`claims of the ’565 Patent by actively and knowingly aiding and abetting others to perform the
`
`method described in paragraph 16 without Gevo’s authorization and with knowledge that the
`
`induced acts constitute infringement of the ’565 Patent.
`
`
`
`
`
`
`
`-7-
`
`
`
`
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`Case 1:12-cv-01202-SLR Document 1 Filed 09/25/12 Page 8 of 9 PageID #: 8
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`PRAYER FOR RELIEF
`
`WHEREFORE, Gevo respectfully requests the following relief:
`
`a)
`
`That judgment be entered declaring that Butamax and DuPont has/have infringed
`
`one or more claims of the ’565 Patent, and Gevo’s provisional rights in those claims, by
`
`manufacturing isobutanol through fermentation and extracting that isobutanol using methods
`
`described and claimed in the ’565 Patent and/or by importing isobutanol that has been
`
`manufactured in that manner.
`
`b)
`
`That judgment be entered declaring that Butamax and DuPont has/have induced
`
`others to infringe one or more of the claims of the ’565 Patent, and Gevo’s provisional rights in
`
`those claims, by without Gevo’s authorization assisting, abetting, and encouraging others to
`
`manufacture isobutanol through fermentation and extract that isobutanol using methods
`
`described and claimed in the ’565 Patent and/or to import isobutanol that has been manufactured
`
`in that manner, and that Butamax and/or DuPont’s inducement of others to infringe are acts of
`
`infringement of one or more claims of the ’565 Patent.
`
`c)
`
`That this Court adjudge and decree that Butamax and DuPont have been and/or
`
`are currently infringing the ’565 Patent.
`
`d)
`
`That this Court adjudge and decree that Butamax and DuPont infringed Gevo’s
`
`provisional rights in the claims of the ’565 Patent.
`
`e)
`
`That this Court adjudge and decree that Butamax and DuPont have been and/or
`
`are currently inducing others to infringe the ’565 Patent.
`
`f)
`
`That this Court adjudge and decree that Butamax and DuPont have induced or
`
`will induce others to infringe Gevo’s provisional rights in the claims of the ’565 Patent.
`
`
`
`-8-
`
`
`
`Case 1:12-cv-01202-SLR Document 1 Filed 09/25/12 Page 9 of 9 PageID #: 9
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`g)
`
`That this Court enter an order that Butamax and DuPont and their officers, agents,
`
`servants, employees, successors and assigns, and those persons acting in concert with them, be
`
`preliminarily and permanently enjoined from infringing the ’565 Patent.
`
`h)
`
`That this Court enter an order that Butamax and DuPont and their officers, agents,
`
`servants, employees, successors and assigns, and those persons acting in concert with them, be
`
`preliminarily and permanently enjoined from inducing others to infringe the ’565 Patent.
`
`i)
`
`That this Court award damages to Gevo to compensate it for each of the unlawful
`
`actions set forth in the Complaint.
`
`That interest, costs and expenses be awarded in favor Gevo.
`
`That this Court order such other and further relief as the Court may deem just and
`
`j)
`
`k)
`
`proper.
`
`DEMAND FOR JURY TRIAL
`
`Gevo respectfully requests a trial by jury on all issues triable thereby.
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`
`/s/ Jack B. Blumenfeld
`_______________________
`Jack B. Blumenfeld (#1014)
`Jeremy A. Tigan (#5239)
`1201 N. Market Street
`P.O. Box 1347
`Wilmington, DE 19899-1347
`(302) 658-9200
`jblumenfeld@mnat.com
`jtigan@mnat.com
`Attorneys for Plaintiff Gevo, Inc.
`
`September 25, 2012
`
`
`
`-9-
`
`
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