A Generic Disclosure Does Not Support Claims To Individual Species

Novozymes A/S v. DuPont Nutrition Biosciences APS

Addressing the issue of written description as it relates to a genus and related species, the U.S. Court of Appeals for the Federal Circuit upheld a district court's post-trial grant of a motion for judgment as a matter of law that claims were invalid for lack of written description, finding that a description of a genus does not provide sufficient written description of claims to particular undisclosed species.  Novozymes A/S v. DuPont Nutrition Biosciences APS, Case No. 12-1433 (Fed. Cir., July 22, 2013) (Schall, J.) (Rader, J., dissenting). 

Plaintiff Novozymes filed a patent application in 2000 describing improved variants of alpha-amylase proteins used in commercial-scale ethanol production.  The disclosure identified 33 specific amino acid positions (out of more than 500 possible positions) that can be changed ("mutated") to yield protein variants that are more thermostable (i.e., heat-resistant).  The