Court: Gevo again free to sell isobutanol into auto fuels market

By Holly Jessen | August 13, 2012

A little more than a month after a temporary court order prohibited Gevo from selling bio-isobutanol into the automotive fuels market, the company announced Aug. 13 that the order has been reversed in federal court. "We're delighted that the Federal Appeals court sided with Gevo and reversed the status quo order, which we believe was wrongly granted," said Brett Lund, executive vice president and general counsel for Gevo. "We're once again free to sell to anyone anywhere."

A July 6 court order in U.S. District Court of Delaware temporarily limited Gevo from supplying isobutanol to the automotive fuel blend stock market while Butamax Advanced Biofuels LLC appealed the court’s decision to dismiss its motion for a preliminary injunction. However, Gevo remained free to sell the isobutanol produced at its first commercial-scale facility in Luverne, Minn., into all other markets, such as chemicals, jet fuel, marine fuel and small engine fuel.

Now, however, the Federal Circuit Court of Appeals has granted Gevo’s motion to stay a status quo order. The appeals court said that the company had, at a minimum, "established a substantial case on the merits." Gevo added that it considers Butamax’s appeal, two requests for status quo orders, a request for a preliminary injunction and ongoing lawsuits as “a blatant attempt by Butamax and its parent companies to slow us down and give themselves some chance to reduce our multi-year lead in commercialization of bio-isobutanol,” according to a company press release.

Gevo announced July 10 that it had produced measurable amounts of isobutanol at the retrofitted ethanol plant located in Luverne. Butamax, a  joint venture between BP and DuPont, has signed up 11 ethanol plants with combined capacities of nearly 900 MMgy to its early adopters group, ethanol plants investigating the possibly of converting to biobutanol production. Big River Resources LLC, which owns four ethanol plants in three states, joined the group in late June.

Gevo and Butamax are locked in an ongoing legal battle over intellectual property rights for bio-based butanol technology. The week of Aug. 6, Butamax filed two separate lawsuits against Gevo, one asking the court to rule that Butamax does not infringe on Gevo’s 8,232,089 patent and another claiming that Gevo is infringing on Butamax’s 8,222,017 patent. “Butamax and its shareholders have invested significant resources in developing the foundational and advanced technology for isobutanol production and we protect this innovative technology with a robust patent portfolio,” said Paul Beckwith, Butamax CEO. “These additional lawsuits reflect Butamax’s commitment to protect our technology for our customers and shareholders.”

Gevo countered that the lawsuit alleging infringement would be found to show no merit and pointed out that it is also challenging the validly of Butamax’s patent in court. "We don't infringe the enzyme claimed in Butamax's patent," said Brett Lund, executive vice president and general counsel of Gevo. "Gevo previously developed and patented a modified E. coli KARI enzyme, and since then, our technology has advanced well beyond this. Our industry-leading process now utilizes an enzyme that is not derived from, or in any way related, to the E. coli KARI enzyme described in the newly issued patent. We provided proof of our non-infringement to Butamax and they still sued us."