PTAB

PGR2017-00018

Bayer CropScience LP v. Exosect Ltd

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Key Events
Petition
petition

1. Case Identification

2. Patent Overview

  • Title: Methods and Uses for Improved Sowing of Seeds
  • Brief Description: The ’739 patent relates to methods for improving seed sowability by controlling seed flowability and reducing dust drift. The methods involve placing seeds in contact with dry, free-flowing "electret" wax particles that function as a flowability enhancement agent.

3. Grounds for Unpatentability

Ground 1: Anticipation and/or Obviousness over Exosect Press Release1 - Claims 1-3 and 6-8 are unpatentable under 35 U.S.C §102 and/or §103 over Exosect Press Release1.

  • Prior Art Relied Upon: Exosect Press Release1 (a press release dated February 6, 2012).
  • Core Argument for this Ground:
    • Prior Art Mapping: Petitioner argued that Exosect Press Release1 disclosed "Entostat powder," the same carnauba wax product used in the ’739 patent's examples. The press release described Entostat as a natural, food-grade wax powder for use in "seed treatments." Petitioner contended this powder inherently met the claim limitations, as it is a dry, free-flowing particle, is "made up of wax," and was characterized by the Patent Owner in other contexts as an "electret." The press release’s teaching of applying this powder for seed treatments met the "placing...in contact with" step. Petitioner further argued the functional limitation "adheres more firmly" was met, citing calculations showing that 10-micron carnauba wax particles adhere more firmly than 10-micron talc particles.
    • Key Aspects: This ground asserted that the Patent Owner’s own pre-filing marketing materials described the core of the patented invention, rendering the claims anticipated or at least obvious.

Ground 2: Obviousness over Reichert in view of Exosect Press Releases - Claims 1-3, 5-8, and 10-12 are obvious over Reichert in view of Exosect Press Release1 or Exosect Press Release2.

  • Prior Art Relied Upon: Reichert (Application # 2015/0072857), Exosect Press Release1 (Feb. 6, 2012), and Exosect Press Release2 (Feb. 23, 2012).

  • Core Argument for this Ground:

    • Prior Art Mapping: Petitioner asserted that Reichert taught methods for improving seed flow and reducing dust by applying a dry wax powder, such as carnauba wax, directly to seeds. The Exosect press releases disclosed that Entostat powder—a carnauba wax product with known electret properties—was available and promoted for use in seed treatments. The combination of these references taught all elements of the challenged claims.
    • Motivation to Combine: A POSITA would combine Reichert’s method with the known Entostat powder because it represented a simple substitution of one known wax powder (from Reichert) with another (Entostat) specifically marketed for the same purpose—seed treatment—to achieve predictable improvements in flowability and dust control. An additional motivation was Entostat’s advertised ability to enable the use of very low doses of active ingredients, a recognized goal in the agricultural industry.
    • Expectation of Success: A POSITA would have had a reasonable expectation of success in making the combination. Both references involved applying wax powders to seeds for similar purposes, the specific wax type (carnauba) was common to both, and the process for making an electret from carnauba wax was well-known in the art.

  • Additional Grounds: Petitioner asserted additional challenges that claims 1-3, 5-8, and 10-12 are unpatentable under §112 for indefiniteness of key terms ("electret," "controlling," "adheres more firmly"), lack of written description, and lack of enablement due to the breadth of the claims versus the narrowness of the disclosure.

4. Key Claim Construction Positions

  • "electret": Petitioner argued that the term "electret" must be construed according to the explicit definition the Patent Owner provided to the USPTO during prosecution to overcome prior art. This definition is not merely a material with a quasi-permanent electric charge, but crucially includes the process by which it is formed: "through 'human intervention' that 'involves cooling a suitable dielectric material within a strong electric field, after heating it above its melting temperature.'" Petitioner contended the Patent Owner was bound by this definition under the doctrine of prosecution history estoppel, and that this construction was essential for determining the scope of the claims.

5. Key Technical Contentions (Beyond Claim Construction)

  • Effective Filing Date and PGR Eligibility: A central contention was that the ’739 patent was not entitled to its claimed priority date of April 4, 2012. Petitioner argued that the key claim limitations "electret" and "dry free flowing" particles were absent from the foreign priority applications and were first introduced in the PCT application filed on April 3, 2013. Because the claims lacked written description support in the priority documents, their effective filing date was after the March 16, 2013 AIA effective date, making the ’739 patent a "transition application" and thus eligible for Post-Grant Review (PGR).

6. Relief Requested

  • Petitioner requests institution of Post-Grant Review and cancellation of claims 1-3, 5-8, and 10-12 as unpatentable.