Case 1:12-cv-01201-SLR Document 8 Filed 11/05/12 Page 1 of 14 PageID #: 109
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`BUTAMAXTM ADVANCED BIOFUELS
`LLC, and E.I. DUPONT DE NEMOURS AND
`CO.,
`
`
`Plaintiffs,
`
`
`
`v.
`
`
`GEVO, INC.,
`
`Defendant.
`
`
`
`
`)
`)
`)
`
`)
`
`)
`) C.A. No. 12-1201 (SLR)
`)
`
`)
`JURY TRIAL DEMANDED
`)
`
`)
`
`)
`
`
`
`
`ANSWER TO COMPLAINT FOR DECLARATORY JUDGMENT OF
`NON-INFRINGEMENT AND INVALIDITY, AND COUNTERCLAIM
`
`In response to Plaintiff Butamax™ Advanced Biofuels LLC’s (“Butamax”) Complaint,
`
`Defendant Gevo, Inc. (“Gevo”) admits, denies, and avers as follows:
`
`1.
`
`Admitted.
`
`NATURE OF THE ACTION
`
`THE PARTIES
`
`2.
`
`Gevo is without information or knowledge sufficient to form a belief as to the
`
`truth of the allegations set forth in Paragraph 2 of the Complaint and therefore denies them.
`
`3.
`
`Gevo is without information or knowledge sufficient to form a belief as to the
`
`truth of the allegations set forth in Paragraph 3 of the Complaint and therefore denies them.
`
`4.
`
`5.
`
`Admitted.
`
`Admitted.
`
`
`
`1
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`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`BUTAMAXTM ADVANCED BIOFUELS
`LLC, and E.I. DUPONT DE NEMOURS AND
`CO.,
`
`
`Plaintiffs,
`
`
`
`v.
`
`
`GEVO, INC.,
`
`Defendant.
`
`
`
`
`)
`)
`)
`
`)
`
`)
`) C.A. No. 12-1201 (SLR)
`)
`
`)
`JURY TRIAL DEMANDED
`)
`
`)
`
`)
`
`
`
`
`ANSWER TO COMPLAINT FOR DECLARATORY JUDGMENT OF
`NON-INFRINGEMENT AND INVALIDITY, AND COUNTERCLAIM
`
`In response to Plaintiff Butamax™ Advanced Biofuels LLC’s (“Butamax”) Complaint,
`
`Defendant Gevo, Inc. (“Gevo”) admits, denies, and avers as follows:
`
`1.
`
`Admitted.
`
`NATURE OF THE ACTION
`
`THE PARTIES
`
`2.
`
`Gevo is without information or knowledge sufficient to form a belief as to the
`
`truth of the allegations set forth in Paragraph 2 of the Complaint and therefore denies them.
`
`3.
`
`Gevo is without information or knowledge sufficient to form a belief as to the
`
`truth of the allegations set forth in Paragraph 3 of the Complaint and therefore denies them.
`
`4.
`
`5.
`
`Admitted.
`
`Admitted.
`
`
`
`1
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`
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`JURISDICTION AND VENUE
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`6.
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`The allegations in Paragraph 6 of the complaint contain legal conclusions and do
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`not require a response. To the extent a response is required, Gevo denies the allegations set forth
`
`in Paragraph 6.
`
`7.
`
`The allegations in Paragraph 7 of the complaint contain legal conclusions and do
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`not require a response. To the extent a response is required, Gevo denies the allegations set forth
`
`in Paragraph 7.
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`8.
`
`Gevo admits it is a corporation organized under the laws of the State of Delaware
`
`and that it has a registered Delaware agent. The remaining portions of paragraph 8 are legal
`
`conclusions and do not require a response. To the extent a response is required, Gevo denies the
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`allegations set forth in Paragraph 8.
`
`9.
`
`Gevo admits that there are pending litigations between the two parties assigned to
`
`the Honorable Judge Sue L. Robinson (SLR) corresponding to the listed docket numbers.
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`10.
`
`Gevo admits that Plaintiffs’ infringement of Gevo’s U.S. Patent No. 8,017,376
`
`(the “’376 patent”) is an issue in a pending litigation. Those allegations not expressly admitted
`
`contain legal conclusions and do not require a response. To the extent a response is required,
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`Gevo denies all allegations of Paragraph 10 not expressly admitted.
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`11.
`
`The allegations in Paragraph 11 of the complaint contain legal conclusions and do
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`not require a response. To the extent a response is required, Gevo denies the allegations set forth
`
`in Paragraph 11.
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`THE PATENT-IN-SUIT
`
`12.
`
`Gevo admits that the face of United States Patent No. 8,273,565 (the “’565
`
`patent”) recites the information in Paragraph 12 of the Complaint.
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`2
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`13.
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`Gevo admits that the ’565 patent issued from an application that is a divisional of
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`application No. 13/228,342, which is a divisional of application No. 12/953,884, which issued at
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`U.S. Patent No. 8,017,376.
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`14.
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`The allegations set forth in Paragraph 14 contain legal conclusions and do not
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`require a response. To the extent a response is required, Gevo denies all allegations of Paragraph
`
`14 of the Complaint.
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`15.
`
`The allegations set forth in Paragraph 15 contain legal conclusions and do not
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`require a response. To the extent a response is required, Gevo denies the accuracy of Plaintiff’s
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`opinion as set forth in Paragraph 15 of the Complaint.
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`FIRST CLAIM FOR RELIEF
`
`(DECLARATION OF NON-INFRINGEMENT OF THE ‘565 PATENT)
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`16.
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`Gevo restates and incorporates by reference its Answers to Paragraphs 1-15 as if
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`fully set forth herein.
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`17.
`
`Admitted.
`
`18.
`
`Denied.
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`19.
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`Gevo denies that Plaintiffs are entitled to the relief requested in Paragraph 20 of
`
`the Complaint.
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`20.
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`Gevo admits that is has asserted the ‘565 Patent against Plaintiffs in C.A. No.
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`1:12-cv-01202-SLR, but denies that Plaintiffs have been or are damaged by that assertion. Gevo
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`denies all allegations of Paragraph 20 not expressly admitted.
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`3
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`
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`SECOND CLAIM FOR RELIEF
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`(DECLARATION OF INVALIDITY OF THE ‘565 PATENT)
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`21.
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`Gevo restates and incorporates by reference its Answers to Paragraphs 1-20 as if
`
`fully set forth herein.
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`22.
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`Admitted.
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`23.
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`Denied.
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`24.
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`Gevo denies that Plaintiffs are entitled to the relief requested in Paragraph 24 of
`
`the Complaint.
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`25.
`
`Gevo admits that is has asserted the ‘565 Patent against Plaintiffs in C.A. No.
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`1:12-cv-01202-SLR, but denies that Plaintiffs have been or are damaged by that assertion. Gevo
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`denies all allegations of Paragraph 25 not expressly admitted.
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`PRAYER FOR RELIEF
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`This section constitutes a prayer for relief to which a response is not required. To the
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`extent that this section may be deemed to allege any facts or any factual or legal entitlements to
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`the relief requested, Gevo denies each and every such allegation. Specifically, Gevo denies that
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`Butamax is entitled to any of the requested relief.
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`GENERAL DENIAL
`
`Gevo denies any allegations in the Complaint not specifically admitted.
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`COUNTERCLAIMS
`
`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.
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`4
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`2.
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`Butamax is a limited liability corporation organized and existing under the laws of
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`the State of Delaware, with its principal place of business in Wilmington, Delaware. Butamax is
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`jointly owned by DuPont and BP Biofuels North America LLC, an indirect subsidiary of BP
`
`p.l.c. (“BP”).
`
`3.
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`DuPont is a corporation organized and existing under the laws of the State of
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`Delaware, with its principal place of business in Wilmington, Delaware.
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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.
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`5.
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`On information and belief, individuals employed by DuPont engage in research
`
`and development activities related to the subject matter of this action.
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`6.
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`On information and belief, Butamax engages in research and development related
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`to the subject matter of this action using facilities located in the DuPont Experimental Station
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`which is located in Wilmington, Delaware.
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`7.
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`On information and belief, DuPont directs Butamax to engage in research and
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`development activities related to the subject matter of this action, and controls the manner in
`
`which these activities are performed.
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`JURISDICTION AND VENUE
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`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
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`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
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`
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`5
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`
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`related to the subject matter of this complaint. Butamax maintains continuous and systematic
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`contacts with the forum such that the exercise of jurisdiction over Butamax would not offend
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`traditional notions of fair play and substantial justice.
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`10.
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`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
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`the exercise of jurisdiction over DuPont would not offend traditional notions of fair play and
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`substantial justice.
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`11.
`
`Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b) and 1400(b).
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`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.
`
`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. A copy of the ‘565 Patent is
`
`attached hereto as Exhibit 1.
`
`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
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`6
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`
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`as the ’565 Patent, and the ’322 Publication includes claims that are identical or substantially
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`identical to claims of the ’565 Patent.
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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
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`microorganisms comprising a recombinantly overexpressed polynucleotide encoding a
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`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
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`GRX4.
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`16.
`
`On information and belief, Butamax and/or DuPont produce isobutanol through
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`the deletion, mutation, and/or substitution of either of the endogenous genes Grx3 and/or Grx4 in
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`recombinant yeast strains, whereby increased Fe-S cluster biosynthesis results in increased
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`specific activity of the dihidroxy-acid dehydratase polypeptide (DHAD) and increased output of
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`associated biosynthetic pathways responsible for the production of branched chain amino acids,
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`pantothenic acid, and isobutanol. Several examples of how this is done are described in
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`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.
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`FIRST COUNTERCLAIM
`(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
`
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`7
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`Patent by performing and/or directing others to perform the methods described in paragraph 16
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`without Gevo’s authorization. Gevo believes it will develop further evidence for this allegation
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`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.
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`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
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`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.
`
`SECOND COUNTERCLAIM
`(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
`
`22.
`
`these Counterclaims.
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`8
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`23.
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`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.
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`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).
`
`THIRD COUNTERCLAIM
`(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.
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`9
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`28.
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`On information and belief, Butamax and DuPont are and will be actively and
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`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 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.
`
`
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`WHEREFORE, Gevo respectfully requests the following relief:
`
`PRAYER FOR 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
`
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`10
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`Case 1:12-cv-01201-SLR Document 8 Filed 11/05/12 Page 11 of 14 PageID #: 119
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`
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`manufacturing isobutanol through fermentation and extracting that isobutanol using methods
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`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
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`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 others
`
`to infringe Gevo’s provisional rights in the claims of the ’565 Patent.
`
`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
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`preliminarily and permanently enjoined from infringing the ’565 Patent.
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`11
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`
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`h)
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`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.
`
`j)
`
`That this Court determine that this patent infringement case is exceptional and
`
`award Gevo its expenses including its attorneys’ fees incurred in this action pursuant to
`
`35 U.S.C. § 285.
`
`That interest, costs and expenses be awarded in favor of Gevo.
`
`That this Court order such other and further relief as the Court may deem just and
`
`k)
`
`l)
`
`proper.
`
`DEMAND FOR JURY TRIAL
`
`Gevo joins Butamax’s request for a jury trial on all issues triable by jury.
`
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`12
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`Case 1:12-cv-01201-SLR Document 8 Filed 11/05/12 Page 13 of 14 PageID #: 121
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`/s/ Jeremy A. Tigan
`________________________________________
`Jack B. Blumenfeld (#1014)
`Jeremy A. Tigan (#5239)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899-1347
`(302) 658-9200
`jblumenfeld@mnat.com
`jtigan@mnat.com
`
`Attorneys for Gevo, Inc.
`
`
`
`
`
`
`
`
`OF COUNSEL:
`
`Gerald J. Flattmann
`Preston K. Ratliff, II
`Joseph O’Malley, Jr.
`Anthony Michael
`PAUL HASTINGS LLP
`75 East 55th Street
`New York, NY 10022
`(212) 318-6000
`
`James P. Brogan
`Carolyn V. Juarez
`Ann Marie Byers
`COOLEY LLP
`380 Interlocken Crescent, Suite 900
`Broomfield, CO 80021-8023
`(720) 566-4000
`
`Michelle S. Rhyu
`COOLEY LLP
`Five Palo Alto Square
`3000 El Camino Real
`Palo Alto, CA 94306-2155
`(650) 843-5000
`
`November 5, 2012
`
`6651460
`
`
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`13
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on November 5, 2012, I caused the foregoing to be electronically
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`filed with the Clerk of the Court using CM/ECF, which will send notification of such filing to all
`
`registered participants.
`
`I further certify that I caused copies of the foregoing document to be served on
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`November 5, 2012, upon the following in the manner indicated:
`
`Richard L. Horwitz, Esquire
`David E. Moore, Esquire
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza, 6th Floor
`1313 North Market Street
`Wilmington, DE 19801
`Attorneys for Butamax™ Advanced
`Biofuels LLC
`
`Richard A. De Sevo, Esquire
`Hank Heckel, Esquire
`Abigail Langsam, Esquire
`KAYE SCHOLER LLP
`425 Park Avenue
`New York, NY 10022
`Attorneys for Butamax™ Advanced
`Biofuels LLC
`
`
`Daniel Forchheimer, Esquire
`Leora Ben-Ami, Esquire
`Thomas F. Fleming, Esquire
`Christopher T. Jagoe, Esquire
`Sharon H. Billington, Esquire
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, NY 10022
`Attorneys for Butamax™ Advanced
`Biofuels LLC
`
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`BY ELECTRONIC MAIL
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`BY ELECTRONIC MAIL
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`BY ELECTRONIC MAIL
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`/s/ Jeremy A. Tigan
`Jeremy A. Tigan (#5239)
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