Los Angeles – German based Bayer CropScience recently amended its complaint in its patent infringement lawsuit against Dow Agro Sciences in a Delaware Federal Court adding additional counts of patent infringement. Bayer alleges that Dow’s application for approval to market a three-gene herbicide tolerant soybean infringed on seven Bayer patents.
The original action concerned soy, cotton, and corn sold by Dow under the Dow Enlist brand name. Bayer alleged that Dow’s products infringed on its 2,4-D herbicide tolerant patent. The additional causes of action for patent infringement involve Dow’s herbicide resistant soybean production. Bayer claims that Dow’s soybeans infringe seven Bayer patents for glyphosate-tolerant technology.
Glyphosate is an herbicide used to kill weeds. Glyphosate is the most common herbicide used in the U.S. and is sold by Monsanto under the Roundup brand name. Due to the effectiveness and widespread use of herbicides in agriculture, genetically modified seeds designed to withstand the application of glyphosates have become increasingly popular. For example, Roundup maker Monsanto also markets a line of herbicide tolerant corn seed under the brand name Roundup Ready. In this action, Bayer claims to own seven patents relating to herbicide tolerant technology for use in agriculture.
Reacting to Dow’s request for approval to market herbicide tolerant soybeans, Bayer requested a permanent injunction prohibiting the sale of any infringing soy seeds.To receive the injunction, Bayer will have to show that a refusal to bar sale of the soybeans by Dow will result in irreparable harm. Bayer must also show that money damages would be insufficient in the matter for an injunction to issue. If granted, a permanent injunction would bar Dow’s sale of the herbicide tolerant soybeans until the patent term expires.