Plaintiff’s Inability to Obtain Manufacturing Process Information from Chinese Manufacturer Justifies Presumption of Infringement Under 35 U.S.C. § 295​

The court denied plaintiff's motion for summary judgment of infringement of a fungicide patent, but found that the burden to establish noninfringement should be shifted to defendant under 35 U.S.C. § 295. "[Plaintiff] contends that it made reasonable efforts to discover [defendant's Chinese manufacturer's] process for producing azoxystrobin technical, but that it has been thwarted by [defendant's] lack of full cooperation and its inability to get information from [the manufacturer]. . . . [Defendant] asserted that it had no written communications with [the manufacturer], because they corresponded only in person, via telephone, or via a chat program that did not save correspondence. . . . At his deposition . . . [the manufacturer's representative] affirmed that [the manufacturer] has production records with the ratios and quantities of materials used in the manufacturing process . . . but that no one associated with [defendant] informed him that [plaintiff] was asking for those documents, apart from sharing [a] July 28 letter about a month before his deposition. He did not produce any of these documents at his deposition, despite being aware that [plaintiff] had asked for them. . . . While [plaintiff] did not seek discovery directly from [the manufacturer] . . . it 'is extremely difficult, if not impossible . . . to compel the Manufacturer [in China] to produce any documents' . . . . Moreover, given [the manufacturer's] location in China, requesting voluntary facility inspections or observing the process firsthand are unlikely possibilities for discovering information."

Syngenta Crop Protection, LLC v. Willowood, LLC et al, 1-15-cv-00274 (NCMD March 24, 2017, Order) (Eagles, USDJ)