Dow survives another Bayer patent challenge

Dow Chemical Company subsidiary Dow AgroSciences has won another lawsuit involving its Enlist weed control technology.

On October 7, the US District Court for the District of Delaware found that Dow has the right to sell its Enlist E3 soybean seed and said Bayer’s challenge to prevent the biotech firm from doing so must be dismissed.

Bayer CropScience AG filed the action in January 2012 claiming that Dow’s intention to sell its Enlist E3 soybean seed infringed seven of its glyphosate tolerance patents.

E3 is a soybean event – or plant cell that has new genes introduced into it – that gives soybeans tolerance to three different herbicides.

Bayer entered into an agreement with MS Technologies in 2004 that allowed it a worldwide exclusive licence to grant sublicences under Bayer’s licensed patents.

In 2007, MS Tech agreed with Dow to develop and sell E3 together.

Bayer said that in doing so, Dow was infringing Bayer patents, maintaining that MS Tech was not granted the right to commercialise under its agreement. It also argued that MS Tech only has the right to sublicense soybean events it has made itself.

However, the court found that MS Tech retains ownership of E3, and added: “Similarly, the factual record demonstrates that because MS Tech retains ownership of E3, E3 is made ‘for’ MS Tech.”

The opinion continued: “The agreement grants MS Tech the right to commercialise; and … MS Tech appropriately sublicensed that right to Dow to develop and sell E3.”

Judge Bumb said: “This court has pored over the record searching for objective evidence to support plaintiffs' arguments ... it has found none.”

The decision comes weeks after the US Court of Appeals for the Federal Circuit found in Dow’s favour in another with case Bayer that involved the Enlist 2,4D tolerance technology.

“We repeatedly have expressed confidence in our legal position in each of the cases filed by Bayer concerning our Enlist technology, and the results we have obtained in these cases certainly validates our conviction,” said Dow’s general counsel Ken Isley.

Bayer did not respond to a request for comment.