On Monday, April 3, Law360 reported that Dow Agrosciences, LLC ("Dow"), a subsidiary of Dow Chemical, has requested an en banc hearing by the Federal Circuit to review a prior ruling by the Federal Circuit. In March, a three-judge panel awarded Bayer Cropscience NV ("Bayer"), a Bayer Corp. subsidiary, a $450 million judgment in a dispute between the companies over patents controlling weeds. The ruling, issued March 1, held that the review of arbitration awards is "very limited." Dow is now arguing this interpretation is incorrect because the decision violates public policy.
These allegations are nothing new to the Federal Circuit. A common theme in literature criticizing the Federal Circuit is that it is not receptive enough to policy implications in its decisions. Dow is making a similar argument in its petition for an en banc hearing, saying that the court "reviewed the award through a lens so narrow that it would sustain most any award, no matter how offensive to U.S. public policy."
The case itself stems from several patents owned by Bayer. Dow's predecessor licensed these patents in 1992, and then sublicensed the patents to MS Technologies, LLC. Bayer stated that this sublicense violated the initial license, terminated the initial agreement, and sued Dow for infringement. Upon arbitration before the International Chamber of Commerce International Court, Bayer was awarded the $455 million in damages still in dispute. This award was maintained by a federal district court and then by the Federal Circuit.
Another wrinkle in this case is that the USPTO has found the patents at issue invalid for double patenting upon reexamination. The Federal Circuit did not hold this dispositive because the proceedings before the USPTO are still pending.
Moving forward, the Federal Circuit's decision could have significant implications for how awards are reviewed. Also of importance will be the USPTO's final ruling on the patents in question.