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BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC

No. 2013-1002.

728 F.3d 1324 (2013)

BAYER CROPSCIENCE AG, Plaintiff-Appellant, v. DOW AGROSCIENCES LLC, Defendant-Appellee.

United States Court of Appeals, Federal Circuit.

September 3, 2013.

Attorney(s) appearing for the Case

Robert J. Koch , Milbank, Tweed, Hadley & McCloy, LLP, of WA, DC, argued for plaintiff-appellant. With him on the brief were Fredrick M. Zullow and Christopher J. Gaspar , of New York, NY.

Mark S. Davies , Orrick, Herrington & Sutcliffe, LLP, of WA, DC, argued for defendant-appellee. With him on the brief were Rachel M. McKenzie ; Elizabeth A. Howard , of Menlo Park, CA; Peter A. Bicks and Alex V. Chachkes , of New York, NY.

Before PROST, BRYSON, and TARANTO, Circuit Judges.

TARANTO, Circuit Judge.

When the inventors applied for the patent at issue, they had sequenced one gene coding for one enzyme, using a test purportedly capable of finding other, similar genes. In writing its claims, the owner — now Bayer CropScience AG — decided to claim a broad category based on the function of the particular enzyme, defining the category by using a term with an established scientific meaning. In doing so, Bayer got ahead of the science...

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