BP Off the Hook in Butamax Biobutanol Suit

Previous posts (e.g., here, here and here) discussed the biobutanol patent war between advanced biofuels company Gevo and BP-DuPont joint venture Butamax.  Some of the suits filed by Gevo named DuPont and BP as defendants in addition to Butamax. 

One such Gevo complaint, filed July 30, 2013, asserts U.S. Patent No. 8,232,089, entitled “Cytosolic isobutanol pathway localization for the production of isobutanol” and alleges that BP “directs” Butamax to engage in infringing actions such as R&D activities. 

BP moved to dismiss the case against it, and the issue was whether BP as a parent of Butamax directs or controls Butamax’s allegedly infringing activities.  The court held it does not.

In a recent opinion the court found the pleadings in Gevo’s complaint deficient on this issue:

In its complaint, Gevo has asserted no underlying facts supporting its conclusory allegation of control; therefore, the court is not obligated to accept as true the proposition that BP controls the activities of its subsidiary defendants or the activities of any business venture owned by the subsidiaries.

Without adequate pleadings, the court was left with the conclusion that Butamax was the proper defendant, the entity engaged in the allegedly infringing activity:

Given the context of this litigation, where it is evident that Butamax is the business entity engaged in the “research and development activities related to the subject matter of this action”, Gevo’s allegations do not  sufficiently tie BP to the alleged act of infringement, that is, disclosing recombinant yeast strains that embody the patented invention.  To put it another way, Gevo has not sufficiently pled any act of infringement that plausibly could be related to BP.


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Eric Lane

Eric Lane, the founder and principal of Green Patent Law, is an intellectual property lawyer and registered U.S. patent attorney in New York and is a member of the bar in New York and California. Eric has more than two decades of experience working with wind, solar PV, CSP, biofuels, and geothermal, energy storage technologies, carbon capture and sequestration, medical devices, data communications, mechanical, chemical, internet and software.