Appellate Court Dismisses Beef Biotechnology Patent Dispute

On Wednesday, the Federal Circuit ruled in favor of biotechnology company Cytonome/ST, LC, rejecting the request of beef producer ABS Global, Inc., the appellant, for an appeal of the Patent Trial and Appeal Board’s decision. The panel of judges decided that the appeal of the ruling that the appellee’s patent was legitimate was moot. 

According to the court’s opinion, Cytonome, along with another company, Inguran, filed a complaint in 2017 against ABS and other defendants purporting that the company infringed six patents, including the ‘161 patent which reportedly belongs to Cytonome in breeding its beef. The Trademark Trial and Appeal Board decided that ABS did not succeed in its argument that aspects of the ‘161 patent were “unpatentable,” however, two weeks later the court concluded that the products ABS produced did not infringe the claims of this specific patent. 

Following these decisions, ABS decided to appeal the determination that the aspects of the ‘161 patent could not be put in a patent. Cytonome chose not to appeal the decision that ABS had not infringed the patent, and used that as grounds to argue that ABS did not have an injury for standing to appeal the previous decision, leading the panel of judges to the decision in Cytonome’s favor. The three-judge panel decided to dismiss the appeal based on the objections, although Judge Prost dissented in part. 

“It was Cytonome that ‘mooted ABS’s appeal … Cytonome obtained a favorable determination from the Board, took voluntary action to moot ABS’s appeal, and now will retain the benefit,” said Judge Prost in his opinion. Prost dissented regarding Part III of the opinion, saying that simply dismissing the case, rather than vacating it, deprives the appellant of review. Part three determined that ABS did not request a vacatur in a timely manner, waiting seven months, and did not support its argument for the vacatur. 

ABS Global, Inc. was represented by Sidley Austin LLP.  Cytonome/St, LLC was represented by Akin Gump Strauss Hauer & Feld