By Leisa Boley-Hellwarth, Mercer County attorney
A huge agricultural case recently made the news. After over three weeks of jury trial, Monsanto was awarded $1 billion in damages for patent infringement by DuPont Pioneer. Eight jurors in U.S. District Court in St. Louis deliberated for less than an hour.
All I know about the case is what I was able to obtain from some on-line research. And I am no expert in patent law. But I would have loved to have spent a short time listening to dark suited litigators argue about stacking. There’s nothing funnier than a common farm term being discussed to death by legal orators and experts.
Monsanto and DuPont Pioneer, both distinguished companies, together share about two-thirds of the North American corn and soybean seed markets. As rivals, they are more like a biotech version of the Hatfields and the McCoys, only the weapons of choice are experts, money and attorneys and the fight is over Roundup Ready technology. This isn’t the first lawsuit between the two, and there are others currently raging. I’d think the disputes were funnier if my seed corn and affiliated tech fees didn’t cost so much. While I realize that research and technology is expensive, extensive litigation is no bargain, either.
The troubled relationship between the two may have started in the 1990’s when Monsanto was preparing to introduce genetically modified crops. Since Monsanto was originally a chemical company, it was new to the seed business. So, it convinced Pioneer to try out the technology by offering a license for very small payments. Once genetically modified crops became huge business, Monsanto got the original contract voided.
The recent case was filed in 2009. Monsanto accused DuPont Pioneer of improperly combining Monsanto’s Roundup Ready technology with Pioneers’ optimum traits in Pioneer’s soybean seeds. Pioneer paid over $750 million in licensing fees for use of the Roundup Ready technology. At issue was the language of the 2002 licensing agreement. In 2010, the judge ruled on the issue of law and found that the Roundup Ready license agreements between DuPont and Monsanto contain an unwritten “implied” term that prohibited Dupont Pioneer from stacking its Optimum GAT trait with Monsanto’s Roundup Ready trait in soybeans or corn. After the recent lengthy trial, the jury decided the factual issue and determined that DuPont Pioneer improperly stacked.
DuPont plans an appeal of this decision. DuPont is also pressing separate patent misuse and antitrust claims against Monsanto. Trial on these issues is slated for September 2013. Monsanto’s Roundup Ready patent expires in 2014. There seems to be no end in site, however, for all pending cases and appeals.