- Butamax™ Advanced Biofuels LLC v. Gevo, Inc.All claims unpatentablePTAB · Aug 5, 2015 · IPR2014-00402 · APJ Zhenyu Yang · IPR · Final written decision
Claims 1–12 and 14–15 are unpatentable as obvious over Gruber and ASTM D7566-09; claim 13 is unpatentable as obvious over those references and Mossman.
RulingsFinal written decision- Skill levelSkill level board ownDecided for petitioner
“shown by a preponderance of the evidence that one of ordinary skill in the art4 would have had a reason to combine the teachings of Gruber and ASTM 4 The parties do not dispute the level of skill in the art. We also note that “[a] specific finding on the level of skill in the art is not . . . required where the prior art itself reflects an appropriate level and a need for testimony is D7566-09, and in doing so, would have had a reasonable expectation of success in arriving at the claimed invention.” slip op. at 6
- Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation foundReasonable expectation foundUnpatentable
“As an initial matter, we reject Patent Owner’s position that to establish prima facie obviousness, “each claim limitation must be provided by the prior art or inherently be present in the applied references.” Id. at 4. As the Supreme Court instructed, “there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness,” but such reasoning “need not seek out precise teachings directed to the specific subject matter of the challenged claim.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Instead, the background knowledge possessed by a person having ordinary skill in the art is an integral part of an obviousness analysis. Id. In this case, whether Gruber inherently discloses ASTM D7566 is irrelevant to our analysis, because Petitioner does not rely on inherency to 5 We assign page numbers sequentially to Patent Owner’s Response as the document itself does not include any. establish obviousness. Indeed, Petitioner points to Gruber for suggesting that renewable jet fuel must meet ASTM specifications for jet fuels. Pet. 23. Petitioner also relies on the knowledge of a skilled artisan that U.S. government agencies would adopt ASTM D7566, which provides the requirements for jet fuels containing synthesized hydrocarbons, to regulate their sale and use. Id. at 26 (citing Ex. 1009 ¶ 21). After reviewing the complete record, we determine that one of ordinary skill in the art would have had a reason to modify the teachings of Gruber to make a renewable jet fuel blendstock that meets or exceeds the requirement of ASTM D7566-09, and would have had a reasonable expectation of success in doing so.” slip op. at 9
- Obviousness (§103) › Graham factors (scope of art, differences, level of skill)UnpatentableUnpatentable
“Claims 2–12, 14, and 15 Petitioner points out that claims 2–8 and 9–11 in Gruber recite the same limitations as those in challenged claims 2–8 and 10–12, respectively. Pet. 27–31. In addition, Petitioner refers to Gruber for teaching using Amberlyst-35 to trimerize olefins, which it argues it satisfies the limitations recited in challenged claim 9. Id. at 30 (citing Ex. 1003, 76:14–15). Furthermore, Petitioner contends that Gruber teaches blending the renewable jet fuel blendstock prepared according to its process with conventional jet fuels derived from petroleum and with aromatics, and thus, satisfies the requirements of challenged claims 14 and 15. Id. at 32 (citing Ex. 1003, 34:32–34, 47:7–8); see also Ex. 1003, 51:30–33 (teaching blending aliphatic and aromatic hydrocarbons, and blending biofuel with petroleum based components, both to produce a product that meets all jet fuel specifications); id. at claim 16 (reciting combining saturated alkanes “with one or more C10– C14 aromatic hydrocarbons, thereby forming a jet fuel”). Patent Owner does not dispute any of these assertions. Based on the evidence of record, we determine that Gruber teaches the additional limitations recited in dependent claims 2–12, 14, and 15.” slip op. at 12
- Disclosure Requirements (§112) › Written description (Ariad)Entitled to earlier dateDecided for petitioner
“In its Response, Patent Owner does not dispute the priority-date determination as set forth in the Decision to Institute. Having considered the complete record developed at trial, we see no reason to change our conclusion that the priority date of the challenged claims is May 9, 2011. Thus, Gruber, ASTM D7566-09, and Mossman all qualify as prior art under 35 U.S.C. § 102(b).” slip op. at 4
Patent outcomesUS 8,373,012 unpatentable§ 103 obviousness§ 112 disclosurecites KSRPatents in suitUS 8,373,012
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