Novozymes A/S et al. v. Danisco A/S et al.
Filing
659
ORDER that each side has until 10/13/11 to file a supplemental brief on the proper construction of the term "isolated variant" in the '723 patent. Signed by District Judge Barbara B. Crabb on 10/7/11. (krj)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - NOVOZYMES A/S and
NOVOZYMES NORTH AMERICA, INC.,
ORDER
Plaintiffs,
10-cv-251-bbc
v.
DANISCO A/S,
GENECOR INTERNATIONAL WISCONSIN, INC.,
DANISCO US INC. and DANISCO USA INC.,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - One of the motions in limine filed by defendants Danisco A/S, Genecor International
Wisconsin, Inc., Dansico US Inc. and Danisco USA Inc. was to clarify the construction of
the term “isolated variant.” Dkt. #537. In particular, defendants argued that variant must
be (1) sufficiently separated to make it easier to identify and recover and (2) separated from
other cellular materials.
At the final pretrial conference, I tentatively agreed with defendants at least with
respect to their first argument. On reflection, however, I am concerned that the parties’
arguments were not grounded in the patent itself or other evidence normally used to aid in
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claim construction. Instead, the parties seemed to be more interested in performing an
exegesis of the summary judgment opinion and dissecting the process performed by the
accused products.
Of course, the operation of the accused products is irrelevant to
determining the proper interpretation of the patent. Further, although I provided a partial
construction of the term “isolated variant” in the summary judgment opinion, the purpose
of doing so was to resolve the immediate dispute in front of the court, not to provide a
universal definition of the term for contexts that could not be foreseen at the time.
Accordingly, before I rule definitively on this motion, I would like the parties to think
more about a proper construction, focusing on the language in the patent and other intrinsic
evidence rather than on the accused products or the language of the summary judgment
opinion. To be clear, I am not seeking a motion to reconsider the ruling in the summary
judgment opinion that “isolated” means “separated.”
Rather, the parties should file
supplemental briefs addressing the question at issue: the extent to which the variant must
be separated in order to be “isolated” within the meaning of the ‘723 patent.
ORDER
IT IS ORDERED that each side may have until October 13, 2011, to file a
supplemental brief on the proper construction of the term “isolated variant” in the ‘723
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patent.
Entered this 7th day of October, 2011.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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