Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-00305-SLR Document 91 Filed 08/O4/2005 Page 1 of 2
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Attorney at l.-aw
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August 4, 2005
VIA ELECTRONIC FILING
Chief Judge Sue L. Robinson
U.S. District Court
J. Caleb Boggs Federal Building
844 N. King Street
Wilmington, DE 19801
Re: DEKALB Genetics Corporation v. Syngenta Seeds, Inc. et al.,
C.A. No. 05-355 (SLR)
Monsanto Company er al. v. Syngenta Seeds, Inc. ef al.,
CA. No. 04-305 (SLR)
Dear Chief Judge Robinson:
Monsanto/DEKALB submit this letter in response to Syngenta’s August 1
letter regarding its request for bifurcation of damages and willful infringement, and for an
early summary judgment motion.
Under F.R.C.P. 42(b), bifurcation is the exception, not the rule, and
Syngenta has not met its burden of showing that bifurcation is warranted. The Court has
set three weeks for trial beginning May 29, 2006. The damages case is not complex,
since defendants have been on the market with the infringing products for only one year.
No additional accused products are at issue in the transferred case.
Bifurcation will be more expensive and inconvenient to the parties. A
number of Syngenta witnesses have knowledge relevant to both the liability and
damages/vvillfulness issues. Also, some of the same facts are relevant to both
nonobviousness (a liability issue) and willfulness. Bifurcation will also delay ultimate
resolution of the case, and will seriously threaten the schedule that has been set for the
antitrust case, which is scheduled to he tried on January 8, 2007.
Syngenta mischaracterizes l\/Ionsanto/DEKALB’s document production.
Even though a Scheduling Conference was held by this Court on October l2, 2004,
Syngenta waited until January 6 to propound over 170 broadly—sweeping document
requests. Despite that delay, Monsanto/DEKALB produced approximately 1.2 million

Case 1:04-cv-00305-SLR Document 91 Filed 08/O4/2005 Page 2 of 2
The Honorable Sue L. Robinson
August 4, 2005
Page 2
document pages by March 18, most of which related to the liability issues, and an
additional 34,000 document pages by April 29. Most of the documents produced
thereafter concern damages issues and documents withheld hom production because of
thirdparty (Bayer) confidentiality issues. (Defendants withheld 20,000 doctunent pages
from production based on Bayer confidentiality issues, and only produced them on 5 une
30.) The parties have also been supplementing their production on an ongoing basis in
response to specific requests from the opposing party. Syngenta just produced l2,000
document pages on July 26.
Given that the bulk of document discovery was complete, on May 18,
Monsanto/DEKALB sent defendants a list of witnesses that they wanted to depose and
also requested defendants to provide a list of witnesses that defendants wanted to depose.
Defendants did not respond to plaintiffs request for dates for depositions until two
months later, on July 20, and Syngenta did not provide a list of witnesses that they
wanted to depose until July 15.
Fact discovery closes on September 30 and expert discovery follows
immediately thereafter. Thus, Syngenta’s proposed early summary judgment motion will
not save time and expense because the motion will not be ready for decision in time to
avoid the expenses of fact discovery and at least some expert discovery. The current date
for submission of summary judgment motions is not that far away, January 1 1, 2006.
The parties can complete all fact discovery, including damages, if their time and
resources are not diverted to summary _judgmer1t briefing.
Syngenta’s proposed early motion does not present a pure issue of law and
will depend on facts to be developed in depositions. Syngenta can be liable for
infringement even if Syngenta did not itself carry out all the steps ofthe claimed process
(Syngenta does not deny that all the claim steps were carried out). Further, under Federal
Circuit law, Syngenta can infringe a dependent claim without infringing the
corresponding independent claim. Monsanto and DEKALB will be prepared to discuss
these substantive issues in more detail at the heating if the Court so desires.
Respectfully submitted,
49 4 VK
David E. Moore
DEM/nmt
693483
cc: Clerk; ofthe Court (By Hand Delivery)
John W. Shaw, Esq. (By Hand Delivery)

Case 1:04-cv-00305-SLR

Document 91

Filed 08/04/2005

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Case 1:04-cv-00305-SLR

Document 91

Filed 08/04/2005

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