Thursday, February 7, 2008

Federal Circuit Sides with Monsanto (Yet Again) in a Dispute with Seed-Saving Farmer

In Monsanto v. David (docket no. 2007-1104), decided February 6, 2008, the Federal Circuit affirmed a district court’s finding that Loren David, a commercial farmer with soybean fields in North and South Dakota, had infringed Monsanto’s U.S. Patent No. 5,352,605 (claiming chimeric genes comprising a CaMV promoter, a regulatory sequence widely used in genetically modified agricultural products) by saving and re-planting Monsanto’s glyphosate-resistant “Roundup Ready®” soybean seeds in violation of a Technology Agreement entered into between David and Monsanto.

Monsanto has filed numerous infringement lawsuits against farmers and seed producers for unauthorized planting of its patented Roundup Ready® seeds. I recently conducted a Westlaw search, a quick review of which indicated that at least 63 individual lawsuits of this type have been filed by Monsanto in district courts throughout the country since 2003, many of them naming multiple defendants. At least 19 have been filed since Jan. 1, 2007, the most recent was filed on Jan. 28, 2008 in Monsanto’s home district (Monsanto v. Woods, docket no. 08-00137 (E.D. Mo.)). Monsanto has prevailed in a number of instances, including at least three prior victories in the Federal Circuit (Monsanto v. McFarling, 302 F.3d 1291 (Fed. Cir. 2002); Monsanto v. Ralphs, 382 F.3d 1374 (Fed. Cir. 2004); and Monsanto v. Scruggs (459 F.3d 1328 (Fed. Cir. 2006).

Proving infringement was complicated by the fact that David purchased some Roundup Ready soybean seeds and apparently planted those along with some unauthorized saved seeds in an attempt to avoid detection. Monsanto needed to provide expert testimony that the number of acres planted by David far exceeded the amount of seed purchased, and evidence that David had purchased large quantities of Roundup herbicide that would have killed all his crops if they were not all glyphosate-resistant, which convinced the court that David must have planted saved seeds. David’s case was not helped by his lack of credibility as a witness; the court noted that he had changed his story at least three times, including claiming at one point that he only planted the perimeter of his fields with Roundup Ready seeds, while planting the interior with conventional seeds. David’s conduct is reminiscent of that of Percy Schmeiser, the defendant in Monsanto v. Schmeiser, an important case heard by the Canadian Supreme Court a few years ago (in which Monsanto also prevailed).

The district court had awarded Monsanto a total of $786,989.43, including $10,000 in enhanced damages, $164,608 in costs and $323,140 in attorney fees. The Federal Circuit affirmed the enhanced damages, costs and attorney’s fees, based on David’s willful infringement and attempts to cover up his infringement and deceive Monsanto, and characterized David as “a farmer with apparent disregard for patents rights, license agreements and the judicial process.” However, it did vacate the district court’s determination of reasonable royalty damages, based on the lower court’s error in determining the density at which the seeds were planted, and remanded for a redetermination on the issue of reasonable royalty.

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