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BSF Leads Way in Milestone Case for Seed Industry on Behalf of DuPont

Winter 2010

Don Flexner

It’s a closely watched case in the world of agribusiness. BSF clients E.I. DuPont Nemours & Co. and Pioneer Hi-Bred International are challenging Monsanto’s monopolization of the market for genetically-modified soybeans and corn, as well as its ability to charge monopoly rents on new biotech innovations in the decade ahead.

In 2002, Monsanto licensed its Roundup Ready® herbicide-tolerant trait to DuPont and Pioneer, a DuPont subsidiary, for their soybean and corn seeds. Several years later, DuPont and Pioneer began to research combining Monsanto's trait with their own to create new soybean products.

The litigation began when Monsanto sued, alleging DuPont and Pioneer were violating its patent rights and the license by combining their Optimum GAT® trait with Monsanto's Roundup Ready® trait.  BSF managing partner Don Flexner, partners James Denvir and Amy Mauser were tapped to lead a team of lawyers representing DuPont and Pioneer.

BSF then filed counterclaims alleging Monsanto had achieved its monopoly status only by obtaining patents through fraud, and that Monsanto is now attempting to extend its monopoly by using its false, soon-to-expire patent to force the industry to switch to a new, non-innovative version of Roundup Ready® for which Monsanto claims patent protections until at least 2020.

The stakes are high: Monsanto’s Roundup Ready® trait is so prevalent in genetically-modified corn and soybeans that it has become a platform with which any new biotech innovation must combine to successfully enter the market. If Monsanto’s attempt to extend its monopoly succeeds, it will be able to charge monopoly rents on new biotech innovations throughout the next decade.

The case is proceeding to discovery in the Eastern District of Missouri. In addition, the Department of Justice has opened an investigation. The BSF team also includes partners Cynthia Christian, Robert Cooper, Eric Mauer, Jack Simms, Christopher Hayes, Hershel Wancjer and associates Ian Crichton, Abby Dennis, and Alicia Weber.

Related Lawyers: Donald L. Flexner, James P. Denvir III, Amy J. Mauser, Cynthia M. Christian, Robert Cooper, Eric J. Maurer, , , Hershel A. Wancjer,