Monsanto, on the other hand, hailed the outcome. In fact, it's now asking Webber to triple the damages to punish DuPont for willfully violating its patent. And Snively, the Monsanto GC, took his own shots at DuPont after the verdict. In his statement he said that discovery showed "that DuPont's senior leaders were actively working to hide the fact [that] their . . . technology had failed and were using elaborate schemes to cover that up with the unlicensed use of our technology."
Patent law professor Bernard Chao, for one, sides with DuPont. A former in-house counsel at Covad Communications Group and now an assistant professor at the University of Denver School of Law, Chao is examining the case and its "novel theory of damages" in his classes. He decries the sealing of so many files, explaining that it's "one of the first high-stakes suits to involve genetically modified organisms. And it has important ramifications for agribusiness across America," as well as for Monsanto's livelihood.
"It's just crazy," Chao says of the damages. He notes that while DuPont may have experimented with Monsanto's technology, it never sold any of the seeds. "So how did the jury get there? A $1 billion verdict makes no sense to me at all," Chao continues. "Monsanto lost nothing here."
The worst nightmare for Monsanto, Chao speculates, is if Judge Webber lets the so-called compensatory damage award stand, while refusing to grant any additional punitive amount. A higher court could well decide to reduce or eliminate the $1 billion award because there was no proof of loss, Chao says, leaving Monsanto with nothing.
Even after the appeals, there's more to come. DuPont had pushed the U.S. Department of Justice's antitrust division into investigating Monsanto's stranglehold on the genetic patent. Small farmers in particular suffered because they couldn't afford Monsanto's steep prices for the seeds. Bloggers and others referred to the company as "thuggish" toward farmers, "a patent bully," and even called Monsanto "agribusiness's version of The Death Star."
But Monsanto received a boost in November. The Justice Department dropped its antitrust investigation without comment. Now DuPont is on its own as it pursues its antitrust countersuit, scheduled for trial in October. As the rival general counsel gear up for this new battle, it's hard to imagine that it can get any hotter.
This article originally appeared in Corporate Counsel under the headline “Seeds of Conflict.”