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| Monsanto vs. DuPont vs. Monsanto |
Posted: Friday, June 19, 2009 3:15 pm
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The lawsuit involves a set of claims and controversies that would trigger a bout of siallorhea in any anti-GMO activist. The 'giant corporation' element is obvious. But there's also patents, the control of the seed market, and an alleged failure of biotechnology to deliver benefits to farmers. In this battle of the Titans, the activists--their perennial arch-enemies--are mute. No wonder. For the Titans, this is dangerous business, and their opponents need only gloat.
The lawsuit commenced on May 4, 2009, when Monsanto filed a set of claims against DuPont in federal court in St. Louis, Mo. In a statement, Monsanto said that the suit was "to prevent unlawful use of Monsanto's proprietary Roundup Ready herbicide tolerant technologies in soybeans and corn."
"As the saying goes, imitation is the sincerest form of flattery," said Hugh Grant, Monsanto's CEO in that statement. "However, unlawfully taking technology is neither imitation nor flattery; it is unethical and wrong."
That's true for everyone in agriculture, all the way down to technology-pirate Percy Schmeiser. Grant put DuPont in the same category, adding, "A true technology company respects patents and its contractual agreements and delivers new products through its own innovation and honest collaboration. DuPont has failed on all counts."
This is where things get more complicated than the case against Schmeiser, who simply devised a crude, but effective method for replicating Monsanto technology.
Monsanto says that DuPont has a license to use Roundup-Ready technology--something Schmeiser didn't have. In fact, DuPont sold seed with the trait without legal difficulties. However, DuPont has its own herbicide-tolerance technology, known as Optimum GAT. The company had planned to roll this out in direct competition with Monsanto's technology.
So far, so good--everyone's within their rights.
For Monsanto, the problem arose when DuPont combined its own herbicide-tolerance technology with Monsanto's herbicide-tolerance technology, in the same seed. This is known as "stacking".
In its first statement on the case, Monsanto said that Pioneer--a division of DuPont--was "misusing the Roundup Ready trait to mask problems with their Optimum GAT trait", and that "[t]his violates Monsanto's contract rights and US patents."
That's an interesting choice of words. It implies that stacking these two traits would be just fine if either of them worked just as well on their own--but that using one trait to fix problems with the other is not. Meanwhile, Monsanto took this as an opportunity to criticize the effectiveness of DuPont's Optimum GAT trait, adding that "Pioneer has recently admitted that the Optimum GAT trait when used alone presents unacceptable risks to farmers."
What a slam. "Unacceptable risks to farmers" sounds like Vandana Shiva talking in her sleep. With high-tech corporations and world-class scientists involved, though, you'd think there'd be some top-notch data to support this allegation. The data Monsanto is relying on is a video, according to Monsanto's timeline of the events leading to the suit.
A video. Activists like to cite videos, but Monsanto? Okay, it's a DuPont/Pioneer video, but it's still a video.
In a defensive statement, DuPont claims that "combining, or "stacking," of Optimum GAT and Roundup Ready technologies is clearly within its rights under the license agreement with Monsanto." This actually clarifies things, to a point. The controversy is clearly over whether the license agreement allowed stacking. Deciding the matter will rest on a careful reading of the terms of the agreement, but obviously, the best lawyers the Titans can find--and they will find the best--haven't figured it out well enough to decide it among themselves.
DuPont took the unprecedented step of publishing its legal response to Monsanto's lawsuit online, but on this point, it's not terribly helpful. The terms of the license agreement are merely referred to, not quoted, and in any event, what's been posted online is a "redacted" version of the official document, which is under court seal.
DuPont also fought back against Monsanto with a set of counterclaims which are ominous, at the very least.
The company also claims that patents relating to Monsanto's Roundup Ready soybeans are invalid and, therefore, are not infringed when Optimum GAT and Roundup Ready traits are "stacked" in soybeans. In addition, DuPont is seeking broad relief under anti-trust laws that would, in the words of the company, "end Monsanto's multifaceted, anti-competitive scheme to unlawfully restrict competition."
In its court filing, DuPont alleges that Monsanto has a more than 97 percent US market share of herbicide tolerance technology in soybeans, and that Monsanto has a general lock on seed breeding stock due to its agreements with seed companies.
In its court filing, DuPont also asked for a jury trial. That wouldn't be unusual in your average case, but in a case of this nature, it's significant. In disputes over agricultural biotechnology, juries have tended to declare patents void. What they might do with anti-trust claims in this industry is another question.
If Monsanto lost its Roundup Ready technology in a patent fight, the company would be in real trouble. Economically speaking, in about as much trouble as if Optimum GAT proved to be just as good. If its contracts with seed companies were abrogated due to anti-trust claims, the results could be a good deal worse.
For both companies, this lawsuit is dangerous business. Before all is said and done, it's not going to make the industry, or its technology, look very good. Which is why activists are on the sidelines and need merely gloat.
But a video? And a contract so ambiguous that the best lawyers can't tell if it allows stacking? This is putting a lot on the line for evidence which, thus far, seems so useless that only an activist would rely on it.
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