September 30, 2006
Monsanto makes Roundup, a broad-spectrum herbicide. Monsanto's patent on Roundup expired in September 2000, but it still exercises monopolistic control of the market through tying arrangements with its still-patented Roundup-resistant seeds: buy the seeds, and you must buy Roundup. Spray the cropland growing the resistant seeds, killing the weeds, but the crop is unscathed. The whole scheme is now under attack on two fronts: anti-trust and patent validity.
The Scruggs brothers, who planted Monsanto's seeds without license, got whacked by Monsanto for patent infringement. Scuggs had argued patent misuse for the antitrust tying scheme, but neither the trial court nor the appeals court majority would have it. But Judge DYK, in a well-reasoned dissent, thought the argument had merit, even going so far to declare the CAFC ruling against Supreme Court precedent.
Now Pullen Seeds and Soil is tilling the same ground, filing an antitrust suit Thursday in Delaware district court. The complaint notes:
During the post patent period, Monsanto has maintained an 80% or more market share of all glyphosate herbicides sold in the United States despite Monsanto's charging dealers 300 to 400% more for brand-name Roundup than the price charged by generic competitors.
Had... competition not been foreclosed by Monsanto, free and unfettered competition would have forced Monsanto to lower its prices for Roundup herbicides to competitive levels.
Pullen Seeds, a seed company, not a pesticide maker, is particularly uprooted by Monsanto's seed patents, against which it cannot compete; the anti-trust case doesn't address that issue directly.
Dan Ravicher of PUBPAT confronts the problem at ground level, trying to force reexamination of Monsanto's 1988 family of glyphosate-resistant seed patents: 5,164,316; 5,196,525; 5,322,938; 5,352,605. Ravicher's patentocide is a 103(a) combo of 4,407,956, filed in 1981, and a related 1982 article. Ravicher's claim charts are a compelling read.
On the environmental front, while glyphosate isn't Agent Orange, it is high on the list of reported pesticide-related illnesses by agricultural workers, and it kills fish and amphibians. Glyphosate use is unregulated in the United States.
Posted by Patent Hawk at September 30, 2006 2:43 PM | Antitrust