OPINION

RENÉE MARIE BUMB, District Judge.

The poet Ella Wheeler Wilcox once said that "a weed is but an unloved flower." Farmers and the parties to this litigation disagree.

Each party has sought patent protection for intellectual property that allows crops, primarily corn and soybeans, to resist a powerful weed herbicide known as 2,4-Dichlorophenoxyacetic acid ("2,4-D"). Use of the 2,4-D herbicide maximizes crop yields because the crops no longer have to compete with weeds for water, nutrients, and sun.

The Plaintiff, Bayer CropScience AG ("Bayer"), claims that the Defendant, Dow AgroSciences LLC ("Dow"), has infringed its patent, patent number 6,153,401 (the "401 Patent") through its "Enlist Weed Control" product.1 Bayer has moved for partial summary judgment on claims 1-3 and 8 of the 401 Patent. [Docket No. 111]. Dow has moved for summary judgment of non-infringement. [Docket No. 218]. Dow has also moved for summary judgment asserting that: (1) claims 4 and 5 of the 401 Patent are invalid [Docket No. 220]; and (2) the 401 Patent is invalid for failure to satisfy the written description requirement of 35 U.S.C. § 112 [Docket No. 241].

For the reasons that follow, Bayer's motion for partial summary judgment is DENIED; Dow's motion for summary judgment of non-infringement is GRANTED; Dow's remaining motions are DENIED as moot.2

I. Background

A. Bayer's 401 Patent

In the mid-1980s, Bayer scientists sought to genetically engineer plants that would be resistant to 2,4-D, which ordinarily kills weeds and plants alike. At that time, it was known that several species of bacteria could grow on 2,4-D through a metabolic process that involved, as its first step, the degradation of 2,4-D into 2,4-dichlorophenol ("2,4-DCP"). [Docket No. 211, Declaration of Robert P. Hausinger ¶ 14)]("Hausinger Dec."). One of those species was called Alcaligenes eutrophus. Hausinger Dec. ¶ 13. It contains a gene, known as the tfdA gene, which provides genetic coding for the production of an enzyme, known as the TfdA enzyme, that catalyzes the reaction that converts 2,4-D into 2,4-DCP. Id.

Specifically, in the presence of (i) 2,4-D, (ii) two oxygen atoms, and (iii) a-ketoglutarate, the TfDA enzyme causes a reaction in which one oxygen atom combines with 2, 4-D to form an unstable hyrodroxylated 2,4-D, one oxygen atom combines with aKG to form succinate, and carbon dioxide is produced. [Docket No. 217, Declaration of Joseph Martin Bollinger ¶ 29]("Bollinger Dec."). The unstable hydroxylated 2,4-D then splits apart to form 2,4-DCP and glyoxylate. Id. In the 401 patent, Bayer describes this process, through which the unstable hydroxylated 2,4-D splits apart, as the "cleavage of the side chain." 401 Patent, col. 2:25-27. Because the TfdA enzyme causes a reaction in which two oxygen atoms are incorporated into products other than water, it is classified as a dioxygenase. Bollinger Dec. ¶ 13. A dioxygenase is simply an enzyme that causes a reaction in which two oxygen atoms are incorporated into products other than water. Bollinger Dec. ¶ 8.

While it was unknown at the time whether 2,4-DCP would itself be toxic to plants, Bayer scientists hypothesized that if the gene used in bacteria that allowed this metabolic process could be introduced into a plant, it could confer 2,4-D resistance to the plant without otherwise harming the plant. [Docket No. 210, Declaration of Alan Jones ¶ 7]("Jones Dec."). This prediction was proven accurate when Bayer scientists were able to isolate the tfdA gene responsible for this process in the Alcaligenes bacteria and successfully introduce it into a plant, creating a 2,4-D resistant, but otherwise unchanged, plant. Jones Dec. ¶ 11.

These scientists did so by: (1) creating a mutant strain of Alcaligenes bacteria that lacked 2,4-D resistance; (2) transferring segments of DNA of the non-mutant, 2,4-D resistant Alcaligenes bacteria into the mutant; (3) testing whether the transfer resulted in 2,4-D resistance for the previously vulnerable mutant; and (4) introducing the gene that resulted in 2,4-D resistance in the mutant, the tfdA gene, into a plant. Markman Tr. 132:1-136:9; Jones Dec. ¶ 14. Bayer refers to the process by which it tested genes on the mutant as a "complementation assay" and discloses this procedure in the 401 Patent. [Docket No. 374, p. 3 ("The patent also describes an exemplary tfdA gene isolated from the Alcaligenes eutrophus bacteria using the complementation assay and provides its DNA sequence in Fig. 10.")].

With their efforts successful, Bayer deposited the mutant bacteria in a bacteria depository accessible to the public and sought to patent their discovery. Markman Tr. 132:20-133:8.3 Bayer filed for the 401 Patent on March 10, 1989. Eleven years later, on November 28, 2000, the 401 Patent was issued.

B. Bayer Claims Infringement of 401 Patent

In this lawsuit Bayer claims that Dow has developed genetically modified soybean and corn crops that infringe the 401 Patent. Notably, Bayer does not dispute that Dow's products utilize a gene other than the tfdA gene and that Dow's genes — dubbed the aad genes — code for a different enzyme other than the TfdA enzyme. Despite utilizing different genes, however, Dow's products create 2,4-D resistant plants through the same mechanism as the TfdA enzyme, described above. The parties agree that Dow's enzymes, like Bayer's TfdA enzyme, are dioxygenases.

The fact that Dow's enzymes are dioxygenases is significant. At the time Bayer filed its 401 Patent in 1989, the TfdA enzyme was wrongly believed to be a monooxygenase, not a dioxygenase.4 Bollinger Dec. ¶ 14; Markman Tr. 77:25-78:7. Unlike a dioxygenase where the atoms of oxygen are incorporated into a product other than water, a monooxygenase is an enzyme that causes a reaction in which one atom of oxygen is converted into water and one is incorporated into another product other than water. Bollinger Dec. ¶ 8. In a 2,4-D monooxygenase enzyme, the enzyme — in the presence of (i) 2,4-D, (ii), two oxygen atoms, and (iii) NADH or NADPH — causes a reaction in which the products are an unstable hydroxylated 2,4-D that breaks down into 2,4-DCP and glyoxylate, water, and AND plus or NADP plus. Bollinger Dec. ¶ 28; Markman Tr. 254:20-255:21. Consistent with that mistaken belief, the 401 Patent repeatedly describes the TfdA enzyme as a monooxygenase.

Claim 1 of the 401 Patent is no exception, as it expressly uses the term "monooxygenase." It claims:

401 Patent, Col. 32, 12-19.

C. The Markman Hearing

Because the construction of Claim 1 and other claims in the 401 Patent was central to resolution of this dispute, the Court conducted a claim construction hearing pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996) (the "Markman Hearing"). Importantly, at the Markman Hearing and in prior depositions, experts from both sides agreed that: (1) the meanings of the terms monooxygenase and dioxygenase, described above, have been fixed for decades prior to Bayer's filing of the 401 Patent and are unchanged today; and (2) the TfdA enzyme was a dioxygenase and describing it as a monooxygenase was scientifically incorrect.5

II. Legal Analysis

A. Construction of Claim 1

Dow makes three arguments regarding its construction of Claim 1:

While Bayer vigorously disputes Dow's claim constructions, it does not dispute that if either of Dow's first two claim construction arguments are accepted, Dow's motion for summary judgment of non-infringement should be granted. Nor does Bayer dispute that a failure to satisfy 35 U.S.C. § 112 would also warrant summary judgment in Dow's favor.

Specifically, as to Claim 1, the parties dispute the construction of three claim limitations:

As set forth below, only construction of the second claim limitation is necessary to resolve the present motions. As such, the Court does not address the first and third disputed claim limitations.

1. Biological activity of 2, 4-D monooxygenase.

Bayer claims that the term "biological activity of 2,4-D monooxygenase" should be interpreted to mean "the biochemical (enzymatic) conversion of 2,4-D into 2,4-DCP through the cleavage of the side chain of 2,4-D." In offering this construction, Bayer defines "2,4-D monooxygenase" as "a polypeptide having the biological activity of bringing about the cleavage of the side chain of 2,4-D." Dow argues that the term should be interpreted to mean "the biochemical reactions that occur and the reaction products that form, in a biological system in the presence of a 2,4-D monooxygenase enzyme and 2,4-D." Dow further defines a 2,4-D monooxygenase enzyme as "an enzyme that reacts with the two atoms of molecular oxygen to add one to 2,4-D and reduces the other to water." The parties' respective positions on this claim limitation are shown as follows:

In construing a claim, courts must afford the words of a claim the "ordinary and customary meaning" they would "have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application." Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005). In determining the "ordinary and customary meaning" of claim terms, courts may consider extrinsic evidence, including, among other things, expert testimony and dictionary definitions.6 Id. at 1317.

Both the expert testimony and dictionary definitions support Dow's construction. At the Markman Hearing, and elsewhere, the experts for both sides were generally in consensus as to the ordinary and customary meaning of each of the component terms of "biological activity of 2,4-D monooxygenase."7 They agreed that:

Therefore, looking at these two series of claim terms together, and considering (i) the expert opinions, (ii) the dictionary definitions offered, and (iii) that the TfdA enzyme was erroneously believed at the time of filing to be a monooxygenase, these terms' plain and ordinary meaning is the enzymatic activity of an enzyme, in a biological system, that causes a reaction with 2,4-D, and two molecules of oxygen, where one molecule of oxygen is added to 2,4-D and the other ultimately forms water. That definition comports with the definition offered by Dow, which this Court adopts.

Bayer offers six arguments against this plain construction, each of which this Court addresses. First, Bayer argues that this construction is improper because it would exclude the tfdA gene disclosed in the 401 Patent from coverage because that gene encodes for a dioxygenase enzyme. Bayer contends that this Court should instead construe the claim terms in a manner that does not exclude the preferred embodiment of the patent — the tfdA gene. While Bayer inconsistent with Bayer's proposed construction); Id. at 295:15-20 (Dow's expert testifying that, where there is uncertainty as to whether an enzyme is a monooxygenase or a dioxygenase, it would be proper to call it a hydroxylase). is correct that courts "normally do not interpret claims in a way that excludes embodiments disclosed in the specification," the Court's construction of this claim is warranted in this case. Oatey Co. v. IPS Corp., 514 F.3d 1271, 1277 (Fed. Cir. 2008). Courts may only "construe claims to sustain their validity when the claims are amenable to more than one reasonable construction; when the claims are susceptible to only one reasonable constructions, [courts must] construe the claims as the patentee drafted them." Lucent Techs., Inc. v. Gateway, Inc., 525 F.3d 1200, 1215 (Fed. Cir. 2008)(citations omitted). Here, the claim language is unambiguous, susceptible to only one construction. As the testimony at the Markman Hearing unequivocally demonstrated, the terms were plain and unambiguous. Thus, although it turned out that the TfdA enzyme specified in the 401 Patent was a dioxygenase, this Court "may not redraft [the claim] to cure a drafting error made by [Bayer]." Lucent, 525 F.3d at 1215-16; Elektra Instrument S.A. v. O.U.R. Scientific Int'l, Inc., 214 F.3d 1302, (Fed. Cir. 2000)("Moreover, having concluded that the amended claim is susceptible of only one reasonable construction, we cannot construe the claim differently from its plain meaning in order to preserve its validity (upon which we do not opine)."); Lacks Indus., Inc. v. McKechnie Vehicle Components USA, Inc., 322 F.3d 1335, 1356 (Fed. Cir. 2003)("As a general rule, claim interpretations, which operate to exclude the preferred embodiment, are rarely, if ever, correct and require highly persuasive evidentiary support. However, we have found that such a conclusion can be mandated by clear intrinsic evidence, such as unambiguous claim language.")(quotation and citation omitted)(in dissent).

Second, Bayer argues that this Court can ignore the claim limitation's plain meaning because it acted as its own lexicographer to give the term "biological activity of 2-4,D monooxygenase" the functional definition it proposes above. In support, Bayer cites to a portion of the patent that describes the enzyme at issue as "having the biological activity of bringing about the cleavage of the side chain of 2,4-D." 401 Patent at col. 2:25-27 ("The tfDA gene codes for 2,4-D [monooxygenase], a polypeptide having the biological activity of bringing about the cleave of the side chain of 2,4-D."). While courts may ignore the plain meaning of plain language in favor of a special definition offered by the patentee (Interdigital Comms, LLC v. Int'l Trade Comm'n, No. 2010-1093, 2012 WL 3104597, at *5 (Fed. Cir. Aug. 1, 2012)), they may only do so where the patentee "communicates a deliberate and clear preference for this alternate definition." Kumar v. Ovonic Battery Co., Inc., 351 F.3d 1364, 1368 (Fed. Cir. 2003); Helmsderfer v. Bobrick Washroom Equipment, Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008); Renishaw PLC v. Marposs Societa' per Azioni, 157 F.3d 1243, 1249 (Fed. Cir. 1998). Here, however, Bayer failed to communicate a deliberate and clear preference for this alternate definition in the 401 Patent. Its cited language does not signal in any way that it is communicating a non-standard definition of 2,4-D monooxygenase. Rather, it merely describes the key function of the enzyme at issue. Moreover, Bayer's proposed construction would result in this claim covering all genes having the specific activity of cleaving the side chain — whether a monooxygenase, dioxygenase gene, or other gene.

Third, Bayer argues that its proposed construction is, in fact, consistent with the ordinary and customary meaning of "2,4-D monooxygenase" because, at the time of the invention, the TfdA enzyme was, erroneously, believed to be a monooxygenase. Bayer is, of course, correct that claims must be construed from the viewpoint of a person of ordinary skill in the art at the time of the invention. Phillips, 415 F.3d at 1312-13. But Bayer's argument conflates the relevant analysis. It is immaterial that persons of ordinary skill in the art at the time of the invention erroneously understood the claim terms "2,4-D monooxygenase" to include the TfdA enzyme. That misimpression was not based on a misunderstanding of what it meant to be a 2,4-D monooxygenase, but rather on the mistaken belief that the TfdA enzyme qualified as a 2,4-D monooxygenase. What is material is that 2,4-D monooxygenase had a specific meaning to persons of ordinary skill in the art at the time (just as did dioxygenase and hydroxylase): that meaning would not capture the TfdA enzyme, as the parties agree TfdA is a dioxygenase. Indeed, as the testimony at the Markman Hearing demonstrated, the inventors had a choice of words. They could have written monooxygenase, dioxygenase or even "hydroxylase" to cover both 2,4-D monooxygenase and 2,4-D dioxygenase enzymes. Bayer's own expert, Dr. Hausinger, testified that the distinction between "monooxygenase" and "dioxygenase" enzymes was well known in the art:

Markman Tr. 83:22-84-3; see also Dr. Bollinger's testimony at 254:13-257:11 (distinguishing monooxygenases from dioxygenases).

The experts were also in agreement that these definitions may have been settled for as long as 50 years:

Markman Tr. 249:4-8 (testimony of Dow's expert).10 And Bayer's expert, Dr. Hausinger, agreed:

Markman Tr. 198:5-19. Dow's expert also agreed that the appropriate term to capture both monooxygenases and dioxygenases would have been "hydroxylase":

Markman Tr. 295:15-20. Or, as Dr. Bollinger suggested, the inventors could have claimed "either/or":

Moreover, it is notable that Bayer's expert testified that the inventors had the means to determine whether TfdA was, in fact, a monooxygenase at the time of the patent's filing. As Dr. Hausinger testified:

Markman Tr. 188:9-14; see also Ex. 209 (indicating that inventor had purified TfdA prior to filing an application fort what would become the `401 patent). Dr. Bollinger also confirmed that the inventor could have tested to see whether TfdA was truly a monooxygenase. See also note 3 supra. In the final analysis, even though the inventors erroneously believed that TfdA was a monooxygenase, this Court should construe the claim "as written, not as the patentee[] wish[ed] [it] had written it." Chef Am., Inc. v. Lamb-Weston, Inc., 358 F.3d 1371, 1374 (Fed. Cir. 2004).

Fourth, Bayer contends that Dow's construction would inappropriately render Claim 4 of the 401 Patent meaningless. Claim 4 depends on Claim 1 and refers to a figure displaying the DNA sequence for the tfdA gene, which Dow's construction of Claim 1 would exclude from coverage. While courts generally "strive[] to reach a claim construction that does not render claim language in dependent claims meaningless," that interpretation is unavoidable here because "the only possible interpretation of the claim" terms at issue is the one that this Court has reached. Ortho-McNeil Pharma., Inc. v. Mylan Labs., Inc., 520 F.3d 1358, 1362 (Fed. Cir. 2008)(contrasting the result there, where this "nonsensical result" could be avoided with the result in Chef Am. Inc. v. Lamb Weston, Inc., 358 F.3d 1371 (Fed. Cir. 2004) where such a result was unavoidable). Any other interpretation would simply be inconsistent with the plain language of the patent. As discussed above, the inventors deliberately chose the term monooxygenase. There is no dispute between the parties that the inventors had both a choice of words (monooxygenase, dioxygenase, hydroxylase) and the means to distinguish TfdA. The inventors chose monooxygenase because scientists believed, erroneously, that TfdA was just that. Because this Court cannot redraft Claim 1 to reflect the construction Bayer attempts to give it today, Claim 4 necessarily must fall.

Fifth, Bayer argues that Dow's construction would inappropriately impose the requirement, on Bayer, that the inventor understand the scientific principles on which the invention rests. In support of its argument, Bayer cites to the maxim that "an inventor need not comprehend the scientific principles on which the practical effectiveness of his invention rests." Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565, 1570 (Fed. Cir. 1983). But that principle does not support Bayer's argument. Under that principle, a court will not limit a claim based on an inventor's erroneous belief as to the science behind the invention if there is "no basis" to read that belief as a claim limitation. Id. ("There is no basis or warrant for incorporating that belief as a limitation in the claims.") (emphasis added) Here, there is a firm basis to do so. The plain language of Claim 1 expressly refers to a monooxygenase. Moreover, as discussed, the inventors comprehended the scientific principles at issue: they were aware at the time of the filing of the 401 Patent of the distinction between monooxygenases and dioxygenases and how to test for them.

Sixth, Bayer contends that, in this context, the term "biological activity" should be read as limited to the portion of enzymatic activity responsible for cleaving the side chain. Bayer argues that this construction is justified because that was the only part of the activity of TfdA that was fully understood by scientists at the time of the invention and that would be detected by the complementation assay disclosed in the patent. That interpretation is flatly contradicted, however, by Bayer's own expert who explained that biological activity includes all enzymatic activity, whether it was known or unknown at the time. See generally Markman Tr. 166-169.

Markman Tr. 163:3-14.

Markman Tr. 167:18-168:4.

B. Summary Judgment as to Non-Infringement

Because this Court has adopted Dow's construction of Claim 1 and because Bayer does not dispute that Dow's dioxygenase-based products would not infringe the 401 Patent under such construction, summary judgment as to Dow's non-infringement claim is warranted. See, e.g., Athletic Alternatives, Inc. v. Prince Mfg., Inc., 73 F.3d 1573, 1578 (Fed. Cir. 1996)("the question of literal infringement collapses to one of claim construction and is thus amendable to summary judgment."). The Court therefore need not address Dow's second argument set forth above or the construction of the remaining claims of the patent.

C. Summary Judgment as to Bayer's Proposed Construction for Failure to Provide Written Description

Alternatively, Dow argues that even if this Court accepted Bayer's broad functional-based claim construction ("cleavage of the side chain"), summary judgment in favor of Dow would still be warranted. Dow contends that Bayer's proposed claim construction would invalidate the patent for failure to satisfy the written description requirement of 35 U.S.C. § 112. This Court agrees.

Section 112 provides, in relevant part:

35 U.S.C. § 112.

As discussed above, Bayer's proposed claim construction of Claim 1 is functional. It claims any DNA sequence encoding a polypeptide that has the function of converting 2,4-D into 2,4-DCP through the cleavage of the side chain 2,4-D and which is capable of being expressed in a plant. To satisfy the written description requirement where the patentee claims a broad class of genes, as proposed by Bayer here, the patentee must demonstrate that it has possession "of sufficient species to show that he or she invented and disclosed the totality of the genus." Carnegie Mellon Univ. v. Hoffman-La Roche, Inc., 541 F.3d 1115, 1126 (Fed. Cir. 2008). This requirement may be satisfied (i) by disclosure of structural features common to members of the genus, (ii) by disclosure of a representative number of genes, (iii) where the proposed claim is functional, as here, "by functional characteristics coupled with [disclosure of a] known or disclosed correlation between function and structure," or (iv) by a combination of the above "sufficient to show the applicant was in possession of the claimed genus." Id. at 1124; Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1350 (Fed. Cir. 2010)(en banc); Enzo Biochem, Inc. v. Gen-Probe Inc., 323 F.3d 956, 964 (Fed. Cir. 2002). Importantly, the written description requirement may not be satisfied by the disclosure of "a mere wish or plan for obtaining the claimed invention." Carnegie, 541 F.3d at 1122.

In this case, despite claiming a broad genus of genes based on function, Bayer has not disclosed structural features common to members of its claimed genus. Nor has it disclosed a representative number of genes; it has instead only disclosed a single gene — the tfdA gene. Bayer disputes none of this. Bayer instead contends that its written description is adequate on two other grounds.

First, it claims that its reference to, and deposit of, the mutant bacteria in a publically accessible depository and disclosure of the complementation assay satisfies the written description requirement because together they provide a tool to identify other members of the class. This Court disagrees. Bayer's reference to the mutant in the patent is sufficient to describe the mutant itself. Enzo, 323 F.3d at 965 ("[W]e hold that reference in the specification to a deposit in a public depository, which makes its contents accessible to the public when it is not otherwise available in written form, constitutes an adequate description of the deposited material sufficient to comply with the written description requirement of § 112, ¶ 1."). But even if, as Bayer contends, the complementation assay, in conjunction with the mutant, allows persons of ordinary skill to "routinely identify and obtain" members of the claimed genus, it does not describe the members of the claimed genus, as required to demonstrate Bayer's possession of the claimed subject matter. It is instead an insufficient "plan for obtaining the claimed invention." Carnegie, 541 F.3d at 1122; Regents of the Univ. of Cal. V. Eli Lilly & Co., 119 F.3d 1559, 1566-67 (Fed. Cir. 1997)("Accordingly, an adequate written description of a DNA requires more than a mere statement that it is part of the invention and reference to a potential method for isolating it; what is required is a description of the DNA itself.")(quotation omitted).11 Indeed, even Bayer's own witnesses testified that Bayer's proposed interpretation would render the 401 Patent overly broad.

Markman Tr. 186:12-24 (Dr. Hausinger).

Markman Tr. 443:8-21 (Dr. Jones).

And, as discussed earlier, Dr. Hausinger testified that even sludge from sewage could cleave the side chain. Markman Tr. 185:2-16. These genes, however, are not described in the 401 Patent.

Second, Bayer argues that there is a known correlation between the claimed function and DNA structure and that this correlation may satisfy the written description requirement. While Bayer has presented scientific evidence in support of this argument, they have pointed to no portion of the patent itself that discloses such a correlation, as required. Univ. of Rochester v. G.D. Searle & Co., Inc., 358 F.3d 916, 925 (Fed. Cir. 2004)("In Enzo, we explained that functional descriptions of genetic material can, in some cases, meet the written description requirement if those functional characteristics are coupled with a known or disclosed correlation between function and structure, or some combination of such characteristics.")(quotation omitted); Enzo, 323 F.3d at 964 (Fed. Cir. 2002)("Thus, under the Guidelines, the written description requirement would be met for all of the claims of the '659 patent if the functional characteristic of preferential binding to N. gonorrhea over N. meningitides were coupled with a disclosed correlation between that function and a structure that is sufficiently known or disclosed. We are persuaded by the Guidelines on this point and adopt the PTO's applicable standard for determining compliance with the written description requirement.")(emphasis added).

In sum, even if this Court accepted Bayer's proposed construction, which it does not, Bayer's claim would fail as a matter of law. The claim would not provide an adequate written description and summary judgment in favor of Dow would be warranted on this ground also. Carnegie, 541 F.3d at 1127 (granting summary judgment based on written description where patent holder seeking protection of entire genus had only disclosed single gene and failed to demonstrate issue of fact that they had disclosed entire claimed genus).

III. Conclusion

For all these reasons, Bayer's motion for partial summary judgment is DENIED, Dow's motion for summary judgment of non-infringement is GRANTED, and Dow's remaining motions are DENIED as moot.