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Issued: November 1999 Prosecuted by: Milwaukee’s Foley & Lardner Litigated by: Foley partner Sharon Barner and Pioneer corporate counsel Daniel Cosgrove Today’s most important agricultural patents don’t describe cotton gins and wheat reapers, but rather, key molecular biological phenomena that make plants grow bigger, stronger, and faster.One of the most well-known patents in this category is patent No. 5,990,387. This patent covers a genetic enhancement of corn using a “particle gun” or “gene gun” to insert new genetic material into corn cells. The new material induces each corn plant to produce more ears of corn. The technology could also be used to introduce many other desirable traits, such as drought resistance or nutritional enhancements. Corn is still one of the kings of the agricultural world, with more than 32 billion bushels consumed across the globe. Patent owner Pioneer Hi-Bred International, Inc., a subsidiary of E.I. du Pont de Nemours and Company, maintains about a 40 percent share of the $5 billion annual market for seed corn in the United States. About one quarter of the market — approximately $1.25 billion — is altered by gene-gun technology. Thus, the patented technology, invented by agricultural biologist Dwight Tomes, is of major importance to the company’s bottom line. The day the patent issued, Pioneer filed suit in federal court in Des Moines, Iowa, charging Monsanto Co. of St. Louis, DeKalb Genetics Corp. of DeKalb, Ill., and Novartis Seeds Inc., a division of Switizerland’s Novartis AG, with patent infringement. That dispute is still in discovery. But, if Pioneer’s patent holds up, it will have control over a vital means of genetically altering seed strains.

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