Summary judgment is denied in polymer case
The Dow Chemical Company v. Nova Chemicals Corporation, et al., Civil Action No.05-737b-JJF, July 30, 2010.
Farnan, J. Defendants’ motion for summary judgment of invalidity is denied; plaintiff’s motion for summary judgment that patent claims are not invalid for lack of written description, and for partial summary judgment based on defendants’ written description defense are denied.
The court finds that while new evidence regarding plaintiff’s expert is relevant, it is not dispositive. Troubling questions regarding indefiniteness remain and require resolution by the jury. Defendants contend the lack of slope hardening coefficient units and an indication of slope location do not provide sufficient description to distinguish infringing compounds from non-infringing compounds. The court finds this issue is for the jury. Plaintiff claims that there can be no lack of written description if a claim limitation is recited verbatim in the patent, but the court does not agree. The court finds issues of material fact precluding summary judgment on the written description claim.
