Defendant is enjoined from marketing its DHA products
Martek Biosciences Corporation v. Nutrinova Inc., et al., C.A. No. 03-896-GMS, October 30, 2007.
Sleet, C.J. The court denies defendant’s motions for JMOL of noninfringement of one patent and invalidity of a second patent . It granted in part JMOL of invalidity of a third patent. It further grants plaintiff’s motion for JMOL of infringement of the first patent and for a permanent injunction.
This case was filed on September 23, 2003 asserting infringement of two patents relating to docosahexaenoic acid (“DHA”) products produced by microalgae. A Markman decision issued on December 12, 2005, and a jury trial commenced on October 10, 2006. On October 23, 2006 a jury found that defendant willfully infringed the patents and the infringement was willful. It also upheld the validity of the patents. Defendant filed motions for JMOL regarding noninfringement, no willful infringement, and invalidity. Plaintiff filed a motion for JMOL that defendant’s Process No. 2 literally infringes one of the patents and for a permanent injunction. The disputed technology relates to “heterotrophic organisms and a process for culturing them for the production of lipids with high concentrations of omega-3 highly unsaturated fatty acids.” The jury erred in finding that Process No. 2 does not literally infringe because it does not meet the “non-chloride sodium salt” element in light of unrebutted expert testimony of Daniel I.C. Wang. It upheld the jury finding of infringement under the DOE, concluding prosecution history estoppel does not bar the infringement claim. The jury’s verdict of willfulness was upheld based on substantial evidence that salts other than sodium chloride were used despite statements to the contrary. One argument addressing the insufficiency of the written description was waived when it was not mentioned in the Rule 50(a) motion. The court upholds finding that the patent is not invalid as anticipated. The jury erred in ruling for plaintiff on enablement. Testimony of defendant’s expert, Dr. Owen P. Ward, that the patent did not teach one skilled in the art to practice the invention was unrebutted. Injunction was entered because plaintiff will likely lose market share it may not be able to recapture. Defendant is sole competitor and plaintiff has a right to exclude it from using its proprietary technology.
A copy of the full opinion is available here.
