Dow Wins Second Bayer Enlist Soybean Lawsuit

Soybean Pods Photo Credit: United Soybean Board

Dow AgroSciences LLC has won a second lawsuit involving its Enlist technology. In a 28-page decision, the U.S. federal court ruled that Dow AgroSciences has the right to sell Enlist E3 soybean seed and that Bayer’s lawsuit seeking to prevent Dow AgroSciences from doing so must, therefore, be dismissed. In reaching its decision, the Court indicated that it was unable to find objective evidence supporting Bayer’s arguments.

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The lawsuit, initially filed in January 2012 by Bayer CropScience, alleged that Dow AgroSciences’ intention to sell Enlist E3 soybean seed infringed several of its glyphosate tolerance patents. Yesterday’s decision comes just five weeks after the Court of Appeals for the Federal Circuit affirmed Dow’s summary judgment win over Bayer in the first case initiated by Bayer involving Dow’s Enlist 2,4-D tolerance technology.

According to Dow, Bayer has filed other Enlist-related suits claming infringement in other areas. One of these suits (relating to Dow AgroSciences’ ownership of its 2,4-D tolerance trait) Bayer lost, appealed and most recently lost again. Another Bayer suit, this one claiming infringement of its glufosinate tolerance trait, was sent by the court to arbitration, consistent with the provisions in its original contract.

“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 Ken Isley, Dow AgroSciences’ general counsel.

Dow AgroSciences does not have regulatory authorizations to sell E3 soybeans yet in the U.S. or elsewhere. According to Dow, approvals are pending.