Judge Shuts Down Bayer V. Dow Herbicide-Resistant Crop Patent Lawsuit

By Joseph Mandour on September 28, 2012

Patent ProtectionOrange County – Dow AgroSciences LLC on Thursday escaped Bayer CropScience AG’s patent infringement claims in Missouri federal court over a way to genetically engineer plants to withstand the use of a certain herbicide.

Both companies have sought patent protection for a way to allow crops, primarily corn and soybeans, to resist a powerful weed herbicide called 2,4-Dichlorophenoxyacetic acid or “2,4-D.” Bayer claimed that Dow’s “Enlist Weed Control” product infringed U.S. Patent Number 6,153,401, which it had applied for in March 1989 and was issued in November 2000.

Judge Renee Marie Bumb granted Dow’s motion for summary judgment of non-infringement, adopting Dow’s claim construction relating to the claim of the ‘401 patent in question. Both the expert testimony in the case and dictionary definitions support Dow’s construction, she said.

“The poet Ella Wheeler Wilcox once said that ‘a weed is but an unloved flower,’” the judge said. “Farmers and the parties to this litigation disagree.”

In the mid-1980s, Bayer scientists sought to genetically engineer plants that would be resistant to 2,4-D, which ordinarily kills weeds and plants alike. They accurately hypothesized that introducing a certain gene into a plant would enable a metabolic process to occur that would allow the plant to resist 2,4-D but remain otherwise unchanged.

In alleging Dow has developed genetically modified soybean and corn crops that infringe the ‘401 patent, Bayer notably did not dispute that Dow’s products utilize a gene other than the one it uses and that Dow’s genes code for a different enzyme than the one Bayer uses, the judge said.

Despite utilizing different genes, however, Dow’s products create 2,4-D resistant plants through the same mechanism as the Bayer enzyme, she said.

Bayer itself conceded that if the court adopted Dow’s claim construction, Bayer’s claim would not stand up, according to the judge.

“Even if this court accepted Bayer’s proposed construction, which it does not, Bayer’s claim would fail as a matter of law,” Judge Bumb ruled.

Bayer immediately appealed Judge Bumb’s ruling to the Federal Circuit.

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Posted in: Patent Infringement