Rich Keller, Editor, Ag Professional  |   September 12, 2012 resize text

The lawsuits between Monsanto and DuPont/Pioneer are far from settled even though the first of two trials ended with a $1 billion award to Monsanto against DuPont and Pioneer.

Monsanto sued DuPont and Pioneer in a patent infringement case, and DuPont turned around and countersued Monsanto based mainly on antitrust issues. The judge in the case decided to divide the litigation into two trials—one for patent infringement and the other based in antitrust legal context. Monsanto won a judgment in the patent infringement case during August, and a year from now the antitrust case is to begin before another jury in front of the same judge.

A jury in the U.S. District Court in St. Louis, Mo., found that DuPont and Pioneer infringed on Monsanto Company’s patented Roundup Ready seed technology as it developed and introduced its DuPont Optimum GAT seed technology. The jury award was $1 billion.

DuPont has said it will be appealing that award because it claims the damages are unjustified, particularly considering that “Pioneer never sold a single Optimum GAT [OGAT] seed and has no plans to do so in the future.”

ARGUMENTS OVERLAP

Those with knowledge of the two cases—the one decided and under appeal and the yet to be tried case—have identified potential overlap of arguments and evidence, which seems to greatly complicate things. From the very beginning, when DuPont filed its countersuit, it requested there be one trial, and the judge decided otherwise.

That is why DuPont in its response to the patent case judgment announced, “Several aspects of Monsanto’s misconduct involving the patent, which were not tried in this case, will be presented to a different jury as part of DuPont’s antitrust and patent misuse case against Monsanto in September 2013.”

Naturally, Monsanto had an extremely upbeat announcement after winning the first phase of the litigation, and referred to more damage compensation in the future, if the appeal doesn’t change things and/or it won the second of the two trials. “The finding of willful infringement could lead to an increased award of damages in the case,” the news release noted.

MONSANTO IS UPBEAT

"Importantly, this verdict highlights that all companies that make early and substantial investments in developing cutting edge technology will have their intellectual property rights upheld and fairly valued," said David Snively, Monsanto's executive vice president and general counsel. "This verdict also underscores that DuPont's unauthorized use of the Roundup Ready technology was both deliberate and aimed at rescuing its own failed technology."

"The materials uncovered from DuPont files during this case highlight that DuPont's senior leaders were actively working to hide the fact their OGAT technology had failed and were using elaborate schemes to cover that up with the unlicensed use of our technology," Snively added. "They knew the OGAT technology didn't work for years, but opted to tell a much different story to their customers and to Wall Street. It is deeply disappointing that repeated requests to DuPont's leadership and board to investigate their own internal actions were not addressed and corrected, which ultimately required the matter go to trial."

Monsanto's Roundup Ready technology was first commercially introduced in 1996 in soybean seed. It was the first genetically modified seed that allowed a non-selective herbicide, Roundup, to be applied over an emerged crop without injury to the crop.

Monsanto originally filed suit against DuPont and DuPont Pioneer in May 2009, and as noted, DuPont filed a countersuit months later. Monsanto reported it offered a licensing agreement to DuPont at multiple times prior to and throughout the duration of the trial, but the Delaware-based company refused to accept any of the offers.

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