DuPont to appeal record-setting $1 billion verdict for Monsanto

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By Melissa Meinzer
Dolan Newswires

DuPont officials plan to appeal a federal jury’s record-setting $1-billion verdict that found the company willfully infringed a patent held by Monsanto.

It took the jury 45 minutes to reach the largest collectible verdict in Missouri history Wednesday in U.S. District Court in St. Louis.

DuPont’s best chance for success on appeal will come from proving legal error, rather than factual issues with the finding, said two St. Louis intellectual property attorneys who were not part of the case.

After 17 days of trial, the jury found that Wilmington, Del.-based DuPont had willfully infringed Monsanto’s patent for a genetic trait in seeds. The verdict is the largest jury verdict in the country this year, and the fourth-largest jury award in a patent trial in U.S. history, according to Bloomberg News.

“It’s a sign that the jury was extremely persuaded that DuPont had infringed Monsanto’s patent,” Rudolph A. Telscher said in an interview, calling the case a “clash of Titans.” (Telscher’s firm, Harness Dickey & Pierce, has represented Monsanto, based in Creve Coeur, in other matters but was not part of this case.)

Typically, he said, juries in infringement cases deliberate for four to eight hours. “It would suggest they had their minds made up during trial. They probably adopted Monsanto’s number pretty quickly.”

The trial centered on DuPont’s use of Monsanto’s Roundup Ready trait, a genetic modification to seeds that renders them immune to another Monsanto product, the herbicide Roundup. DuPont was under license to Monsanto to use the trait but ran afoul of the agreement with plans to stack the trait with one of its own, Optimum GAT.

“Importantly, this verdict highlights that all companies that make early and substantial investments in developing cutting-edge technology will have their intellectual property rights upheld and fairly valued,” David Snively, Monsanto’s executive vice president and general counsel, said in a statement from the company. “This verdict also underscores that DuPont’s unauthorized use of the Roundup Ready technology was both deliberate and aimed at rescuing its own failed technology.”

Several attorneys for Monsanto did not return messages seeking comment. Susan Seilnacht, media relations manager for Husch Blackwell, the firm that many of the Monsanto attorneys work for, said all requests for comment should be directed to Monsanto. Monsanto spokeswoman Kelli Powers said that the company would have no comment beyond its statement.

DuPont spokesman Daniel A. Turner referred a reporter to a statement. Messages left with several DuPont attorneys were not returned, and one attorney on the case said it was the policy of his firm, Lewis, Rice & Fingersh, not to comment on the case.

In the statement, DuPont said there were “several fundamental errors in the case which deprived the jury of important facts and arguments and led to the disappointing outcome. DuPont will appeal at the earliest possible opportunity and expects to overturn this verdict.”

Like all appeals on patent cases, the next step for the case is in the U.S. Court of Appeals for the Federal Circuit in Washington, D.C.

Telscher described that court as very proactive. “If there are mistakes made, the court will find them.” Yet much deference will be given to the jury’s findings in that court, Telscher said.

David Deal, director of the Intellectual Property and Technology Law Program at Washington University Law School, said DuPont faces a tough road on appeal.

“At the trial stage, both sides are evenly matched,” Deal said. “But to overcome a verdict at the appellate stage, you have to prove more than ‘I think you got the decision wrong.’”  Deal also said DuPont’s most likely strategy is to seek out legal error.

Joe D. Jacobson at Green Jacobson, a St. Louis firm specializing in civil litigation, said the Washington appellate court has a tendency to invalidate patents.

DuPont said in its statement that it is pursuing antitrust and patent-misuse claims against Monsanto and expects to go to trial with those claims in September 2013. The statement also said that “evidence presented during the trial demonstrated clearly that Monsanto’s Roundup Ready soybean patent is invalid and unenforceable and that Monsanto intentionally deceived the United States Patent and Trademark Office on several occasions as it sought patent protection.”

Other than the $1 billion, the verdict is notable because the jury found willful infringement on the part of DuPont, which could increase the damages further.

“Most infringements are not willful,” Jacobson said. “It’s a tough standard and a high burden of proof.”

To find for willful infringement, Jacobson said, a jury must believe that it was done by clear, convincing evidence.

While not as stringent as beyond a reasonable doubt, the standard is higher than simply a preponderance of the evidence.

First, Jacobson said, the jury considers if the defendant acted in a way that was likely to infringe. Second, the jury considers if the defendant knowingly took a high risk of infringing.

It’s at the discretion of the trial judge to adjust the amount of damages in light of willful infringement. The increase could be as much as treble the initial amount, Jacobson and Deal said.

Usually, Jacobson said, infringers “don’t know [a patent] exists, or they think they can work around it.”

The case is Monsanto Co. v. E.I. DuPont de Nemours & Co., 4:09-CV-686.