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Glyphosate-tolerant stack spawns lawsuit

Lawsuits over seed traits continue to keep corporate attorneys and courtrooms busy.

Last week, Monsanto filed a federal lawsuit against DuPont, which owns the seed company, Pioneer Hi-Bred, for what it says is unlawful use of Monsanto's Roundup Ready herbicide tolerant technology. Monsanto's lawsuit states that DuPont's inclusion of Roundup Ready glyphosate tolerance with its Optimum GAT soybean technology violates Monsanto's contract and U.S. patent rights.

DuPont still plans to solely use Optimum GAT as its glyphosate tolerance trait when it launches Pioneer Optimum GAT corn in 2010.

In soybeans, though, it plans to stack the Optimum GAT and Roundup Ready glyphosate traits when it begins selling Optimum GAT soybeans in 2011. Both Optimum GAT and Roundup Ready give plants glyphosate tolerance, but in different ways.

Monsanto officials say its Roundup Ready trait contains an altered EPSPS synthase enzyme that does not bind to glyphosate. Optimum GAT technology breaks down glyphosate into a harmless metabolite, say DuPont/Pioneer officials. Optimum GAT also gives corn and soybeans tolerance to all five classes of ALS herbicides, including sulfonylurea and imidazolinone herbicides.

Pioneer has included the Roundup Ready trait in its Pioneer seeds since Monsanto licensed it the technology more than a decade ago. At that time, Monsanto officials say DuPont agreed not to stack the Roundup Ready glyphosate tolerance trait with any other type of glyphosate tolerance trait.

Monsanto points to a previous case regarding Monsanto's YieldGard Corn Borer trait, when a court ruled DuPont/Pioneer breached its license and improperly used Monsanto's patented technology. DuPont/Pioneer was able to continue licensed use of Monsanto technology after reaching an agreement with the company, Monsanto officials say.

DuPont/Pioneer disagrees with Monsanto's assertion that it agreed not to stack Monsanto's glyposate-tolerant trait with any other glyphosate-tolerant trait. DuPont/Pioneer contends that such stacking restrictions are one of the practices Monsanto engages in to limit competing products. It runs counter to a November 6, 2008, U.S. Department of Justice final judgment that Monsanto abandon similar stacking restrictions it imposed on licensees producing Roundup Ready cottonseed as a condition for its acquisition of the cottonseed company Delta & Pine Land (DPL), say DuPont/Pioneer officials.

"We are confident in our approach," says Pat Arthur, Pioneer spokesman. This is based on several factors, including the language of the Monsanto/DuPont licensing agreement and support from state attorney generals.

Monsanto disagrees. "The Department of Justice has not, when reviewing the DPL acquisition or at any other time, taken the position that the antitrust laws require Monsanto to offer its competitors a license to stack Monsanto traits with other companies' traits," says Ben Kampelman, Monsanto spokesman. "The agreement that DuPont is referring to took place in an entirely different context that is not applicable to the current dispute."

Lawsuits over seed traits continue to keep corporate attorneys and courtrooms busy.

DuPont says Monsanto is trying to squelch competing products via the lawsuit. It says that point of view has allies in the Oklahoma and West Virginia Attorney General's offices.

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