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BASF Loses Termite-Killer Patent Appeal Against Makhteshim

BASF SE, the world’s biggest chemical company, lost a U.S. appeals court bid to force Makhteshim-Agan Industries Ltd. to stop selling a version of its popular termite killer, a day after filing a new patent suit against that competitor.

Makhteshim-Agan, the world’s largest maker of generic agrochemicals, didn’t infringe two BASF patents, the U.S. Court of Appeals for the Federal Circuit in Washington said today in an opinion posted on its website.

The dispute is over a way of applying insecticides that use the chemical fipronil in and around a building. The patents cover Ludwigshafen, Germany-based BASF’s Termidor, which has been sold for more than a decade and is the top-selling termite product in the U.S. BASF sued Makhteshim-Agan in 2010, after it began selling its own version of the insecticide under the name Taurus SC.

U.S. District Judge William Osteen in Greensboro, North Carolina, was correct in finding the BASF patents covered a specific way of applying fipronil, while Makhteshim-Agan used a different application method, the three-judge Federal Circuit panel ruled.

Anne Burt, a spokeswoman for BASF, said the company is reviewing today’s decision.

New Lawsuit

BASF filed a new patent-infringement suit yesterday against Makhteshim-Agan in federal court in Georgia. It claims Taurus SC is made using a manufacturing process covered by another patent.

“Intellectual property is the cornerstone of our innovation-based marketplace,” Jan Buberl, director of specialty products for BASF North American Crop Protection, said in a statement. “Improper activity that undermines patent protection laws is unfair to those who act properly and lawfully.”

Fipronil is an insecticide also used in flea and tick control products for pets. Makhteshim-Agan, based in Tel Aviv, was bought in 2011 by China National Chemical Corp. and taken private.

The case is BASF Agro B.V. Arnhem v. Makhteshim Agan of North America,12-1206, U.S. Court of Appeals for the Federal Circuit (Washington). The lower court case is BASF Agro B.V. Arnhem v. Makhteshim Agan of North America,10-cv-00276, U.S. District Court, Middle District of North Carolina.

The new case is BASF Agro B.V. Arnhem v. Makhteshim Agan of North America, 13-867, U.S. District Court for the Northern District of Georgia.

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