Dairy cow.

By Joe Kelly

Courthouse News

MADISON, Wis. (CN) – A long-running dispute over patents related to cattle semen sorting technology continued Wednesday, with a Texas company claiming in a new lawsuit that a Wisconsin breeder is still infringing on the patents after it was told by a judge to stop.

The fight began in July 2014 when DeForest, Wisconsin-based ABS Global sued Inguran, a Texas-based company that processes bull semen into sexed samples, for allegedly violating antitrust laws by freezing out marketplace competition for chromosomal sorting technologies.

Inguran, doing business with all its subsidiaries as Sexing Technologies, made its mint by taking unprocessed bull ejaculate from breeders and using patented technology to convert the raw ejaculate into sexed semen by separating either X or Y chromosomes into a female or male-dominant sample. The company sells the sexed samples back to either dairy farmers or beef producers frozen and packaged in straws.

U.S. District Judge William Conley found in favor of Sexing Technologies after a two-week trial in 2016 over ABS’s Sherman Act claims. He ruled that ABS had violated a confidentiality agreement and infringed upon Sexing Technologies’ patents outlining the processes for creating sexed semen samples.

ABS appealed and a three-judge panel in the Seventh Circuit largely upheld the district court’s ruling in January 2019, but remanded some of the patent infringement claims.

After a five-day jury trial, Judge Conley once again ruled in favor of Sexing Technologies last September with regard to the remaining patent disputes, finding that its patents were not obvious and were not invalid due to lack of enablement. He ordered ABS to pay Sexing Technologies over $8 million in royalties.

But Sexing Technologies claims in Wednesday’s 20-page complaint that ABS is still not playing fair with its patents in spite of multiple decisions requiring the Wisconsin company to stop doing so over more than five years of litigation.

Specifically, the complaint claims that ABS is leasing, licensing or selling Sexing Technologies’ semen sorting technology to third parties in the U.S., essentially inducing these third parties into infringing on the patents ABS has already been blocked from using.

The suit also alleges that ABS is breaking the rules by importing frozen straws of sexed semen from outside the U.S. and then selling those imported straws stateside.

Sexing Technologies further claims ABS is using semen sexed via the patented technology for in vitro fertilization, or IVF, with one of ABS’s subsidiaries, violating the terms of its agreement with Sexing Technologies stating that straws sold to ABS would only be used once in one female cow to produce one offspring.

“The value of a dose of sexed semen produced using the…patent is realized many times over when used in IVF, and a reasonable royalty for an IVF dose should be correspondingly higher than a reasonable royalty for a single [artificial insemination] straw of sexed semen,” the complaint states.

Sexing Technologies is once again represented by counsel from the San Antonio office of nationwide firm Akin Gump Strauss Hauer & Feld, in addition to the Madison, Wisconsin-based firm Boardman & Clark.

Kirt O’Neill, Sexing Technologies’ lead counsel with Akin Gump, and representatives with ABS could not be immediately reached for comment Wednesday afternoon.