       NOTE: This disposition is non-precedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

   BUTAMAX(TM) ADVANCED BIOFUELS LLC,
        Plaintiff/Counterclaim Defendant-
                       Appellant,
                          AND

       E.I. DUPONT DE NEMOURS AND CO.,
               Counterclaim Defendant,
                           v.
                     GEVO, INC.,
              Defendant/Counterclaimant-
                        Appellee.
              __________________________

                      2012-1490
              __________________________

    Appeal from the United States District Court for the
District of Delaware in Case No. 11-CV-0054, Judge Sue
L. Robinson.
                _________________________

              Decided: November 16, 2012
               _________________________

   LEORA BEN-AMI, Kirkland & Ellis LLP, of New York,
New York, argued for plaintiff/counterclaim defendant-
BUTAMAX ADVANCED BIOFUELS    v. GEVO                      2


appellant. With her on the brief were CHRISTOPHER T.
JAGOE and BENJAMIN A. LASKY. Of counsel was DANIEL
FORCHHEIMER.

    GERALD J. FLATTMANN, JR., Paul Hastings LLP, of
New     York,    New     York,   argued    for   defen-
dant/counterclaimant-cross appellant. With him on the
brief were PRESTON K. RATLIFF II, JOSEPH M. O’MALLEY,
JR., and ANTHONY MICHAEL, of New York, New York, and
STEPHEN B. KINNAIRD, of Washington, DC. Of counsel
were BENJAMIN G. DAMSTEDT, LORI R. MASON, and
MICHELLE S. RHYU, Cooley LLP, of Palo Alto, California,
and JAMES P. BROGAN, of Broomfield, Colorado.
               __________________________

 Before RADER, Chief Judge, DYK and WALLACH, Circuit
                       Judges.
RADER, Chief Judge.


     This appeal comes before the court following the de-
nial of a preliminary injunction in a patent infringement
case. This court reviews such decisions for abuse of
discretion. See Abbott Labs., Inc. v. Sandoz, Inc., 566 F.3d
1282, 1298–99 (Fed. Cir. 2009). Based on the record and
this standard of review, this court affirms the denial of
the preliminary injunction. Gevo, Inc. raised a substan-
tial question of validity concerning the asserted patent, a
question which Butamax has failed to show “lacks sub-
stantial merit.” See Amazon.com Inc. v. Barnsandno-
ble.com, Inc., 239 F.3d 1343, 1350–51 (Fed. Cir. 2003).
    However, this court’s affirmance should not be read to
endorse the trial court’s very questionable construction of
the claim term “acetohydroxy acid isomeroreductase” –
that is “as an enzyme that is solely NADPH dependent.”
3                     BUTAMAX ADVANCED BIOFUELS    v. GEVO


The trial court should reconsider its construction when it
holds a Markman hearing. Costs of this appeal shall be
borne by the respective parties.


            AFFIRMED AND REMANDED
