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Wednesday, August 15, 2012

Monsanto wins $1b verdict on RoundUp Ready Seed Patent

Patently-O gives a good overview of the case, which is now on a collision course with a CAFC appeal.  Think your research activities are protected under a magical "research exemption"?  Madey v. Duke should have set you straight.  However, most practitioners advise their clients that even if research activities are found to be infringing, the damages are de minimis at best.  After all, where is the lost market share or lost profits?  Really, the only advantage one could get would be a head start in marketing a competitive product.  How much could that be worth?  According to the District Court in this case, it could be worth ONE BILLION DOLLARS!  From the Patently-O case summary:

The damages theory was interesting. Since the accused product was not yet on the market, Monsanto did not seek any lost profit. Rather, Monsanto demanded a reasonable royalty for the research-use made by the defendants. Monsanto argued that the use of Monsanto's invention in DuPont's labs and Pioneer's test fields gave those companies an "improper head start" in making the GM seeds. The judge and jury agreed – if those companies wanted to build upon the invention then they should have first obtained a license. 

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