NOTE: This disposition is non-precedential. mtniteb ~tate5 QCourt of ~peaI5
for tbe jfeberaI QCircuit
BUTAMAX(TM) ADVANCED BIOFUELS LLC,
Plaintiff/Counterclaim Defendant-
Appellant,
AND
E.I. DUPONT DE NEMOURS AND CO.,
Counterclaim Defendant,
v.
GEVO, INC.,
Defendant / Counterclaimant-
Appellee.
2012-1490
Appeal from the United States District Court for the District of Delaware in Case No. 11-CV-0054, Judge Sue L. Robinson.
Decided: November 16, 2012
LEORA BEN-AMI, Kirkland & Ellis LLP, of New York, New York, argued for plaintifflcounterclaim defendant-
2BUTAMAXADVANCED BIOFUELS v. GEVO 2
appellant. With her on the brief were CHRISTOPHER T. J AGOE and BENJAMIN A. LASKY. Of counsel was DANIEL FORCHHEIMER.
GERALD J. FLATTMANN, JR., Paul Hastings LLP, of New York, New York, argued for defen dant/counterclaimant-cross appellant. With him on the brief were PRESTON K. RATLIFF II, JOSEPH M. O'MALLEY, JR., and ANTHONY MICHAEL, of New York, New York, and STEPHEN B. KINNAIRD, of Washington, DC. Of counsel were BENJAMIN G. DAMSTEDT, LORI R. MASON, and MICHELLE S. RHYU, Cooley LLP, of Palo Alto, California, and JAMES P. BROGAN, of Broomfield, Colorado.
Before RADER, Chief Judge, DYK and WALLACH, Circuit
Judges.
This appeal comes before the court following the de nial 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 substan tial question of validity concerning the asserted patent, a question which Butamax has failed to show "lacks sub stantial merit." See Amazon.com Inc. v. Barnsandno bIe.com, Inc., 239 F.3d 1343, 1350-51 (Fed. Cir. 2003).
However, this court's affirmance should not be read to endorse the trial court's very questionable construction of the claim term "acetohydroxy acid isomeroreductase" that is "as an enzyme that is solely NADPH dependent."3 The trial court should reconsider its construction when it holds a Markman hearing. Costs of this appeal shall be borne by the respective parties.
