Nautilus Standard Sinks Dow Patents

• Jurisdiction: United States
• Date: 02 September 2015

Dow Chemical Company ("Dow") lost a ruling that competitor NOVA Chemical Corporation and NOVA Chemicals Inc. (collectively "NOVA") infringed claims of two Dow patents when the Federal Circuit applied the U.S. Supreme Court's new definiteness standard set forth in Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014)("Nautilus"). Dow Chemical Co. v. NOVA Chemicals Corp. (Fed. Cir., August 28, 2015). The court held the claims indefinite under 35 U.S.C. § 112, and reversed the trial court's award of supplemental damages.

Novel Polymer Compositions

Dow sued NOVA alleging infringement of U.S. Patent Nos. 5,847,053 (the '053 Patent) and 6,111,023 (the '023 Patent). The patented technology relates to ethylene polymer compositions with improved modulus, yield strength, impact strength, and tear strength. Claim 6 of the '053 Patent and claim 1 of the '023 Patent were deemed representative. Claim 6 of the '053 Patent recites (emphasis added):

6. An ethylene polymer composition comprising

(A) from about 10 percent (by weight of the total composition) to about 95 percent (by weight of the total composition) of at least one homogeneously branched linear ethylene/α-olefin interpolymer having: (i) a density from about 0.89 grams/cubic centimeter (g/cm3) to about 0.935 g/cm3, (ii) a molecular weight distribution (Mw /Mn) from about 1.8 to about 2.8, (iii) a melt index (I2) from about 0.001 grams/10 minutes (g/10 min) to about 10 g/10 min, (iv) no high density fraction, (v) a single melting peak as measured using differential scanning calorimetry, and (vi) a slope of strain hardening coefficient greater than or equal to 1.3; and

(B) from about 5 percent (by weight of the total composition) to about 90 percent (by weight of the total composition) of at least one heterogeneously branched linear ethylene polymer having a density from about 0.93 g/cm3 to about 0.965 g/cm3.

Claim 1 of the '023 Patent recites (emphasis added):

1. An ethylene polymer composition comprising (A) from about 10 percent (by weight of the total composition) to about 95 percent (by weight of the total composition) of at least one ethylene interpolymer having: (i) a density from about 0.89 grams/cubic centimeter (g/cm3) to about 0.935 g/cm3, (ii) a melt index (I2) from about 0.001 grams/10 minutes (g/10 min.) to about 10 g/10 min., (iii) a slope of strain hardening coefficient greater than or equal to 1.3, and (iv) a Composition Distribution Branch Index (CDBI) greater than...