Butamax(tm) Advanced Biofuels LLC v. Gevo, Inc.

486 F. App'x 883

Opinion

RADER, Chief Judge.

This appeal comes before the court following the denial of a preliminary injunction in a patent infringement case. This court reviews such decisions for abuse of discretion. See Abbott Labs., Inc. v. Sandoz, Inc., 566 F.3d 1282, 1298-99 (Fed.Cir.2009). Based on the record and this standard of review, this court affirms the denial of the preliminary injunction. Gevo, Inc. raised a substantial question of validity concerning the asserted patent, a question which Butamax has failed to show “lacks substantial merit.” See Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350-51 (Fed.Cir.2001).

However, this court’s affirmance should not be read to endorse the trial court’s very questionable construction of the claim term “acetohydroxy acid isomeroreduc-tase” — that is “as an enzyme that is solely NADPH dependent.” The trial court should reconsider its construction when it holds a Markman hearing. Costs of this appeal shall be borne by the respective parties.

AFFIRMED AND REMANDED.