Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-00305-SLR Document 535 Filed O1/07/2008 Page 1 of 2
Richard L. Horwitz
P
Azpdnriiey at Law
M AI]d€1‘SOI1 [email protected]
302 9846027 D' tPh
*$‘C0ITOOn LLP 302 6584192 Fdiccc me
1313 North Maiitct Street
PO. Box 951
Wilmington, DE @899-0951 p
302 984 6000
wwvupotte1·andcrson.com january 7, 2008 ·
VIA ELECTRONIC FILING
The Honorable Sue L. Robinson .
U.S. District Court
J. Caleb Boggs Federal Building
844 King Street
Wilmington, Delaware 19801
Re: Monsanto Company, et al. v. Syngenta Seeds, Inc., et al.
C. A. No. 04-305-SLR
Dear Judge Robinson:
in the context ofthe scheduling for the trial date in this matter, we felt it
appropriate to bring to your attention the July 2008 trial setting of a reiated patent case, DeKalb
Generics Corporation v. Syngenta Seeds, er ol., Case No. 06—CV—l 191, pending before Judge E.
Richard Webber in the United States District Court for the Eastern District of Missouri (the
"l\/lissonri action"). A three—weel< jury trial will commence on July 7, 2008.
DeKalb (a wholly—owned subsidiary of Monsanto) brought the Missouri action
against Syngenta for infiingenient of the Lttndquist ‘798 patent. One ofthe products accused of
infringement is Syngenta’s transgenic corn product based upon the GA21 trait that was at issue
in the prior patent action in this Court involving the Lundquist ‘880 and ‘863 patents. However,
the ‘798 patent is significantly different than the ‘880 and ‘863 patents because the ‘798 patent
contains product claims (not method claims) that are not implicated by this Court’s prior
summary judgment order now on appeal before the Federal Circuit. On December 21, 2007, the
Missouri court issued its order construing the claims ofthe ‘798 patent and adopted most of
DeKalb’s proposed constructions. Under the Missouri court’s construction, Syngenta has
conceded in response to a contention interrogatory and in an expert report that its Agrisure GT
com products are literally encompassed by claims l—5 of the ‘798 patent. A result in the
Missouri action — as things now stand (in Monsanto’s favor) — will have a significant impact on
the antitrust claims in this case because Syngenta would not have any legal right to rnake, use, or
sell a GA21 product. Such a resolution would also be relevant to Syngenta’s allegation that
Monsanto filed "baseless” patent claims. Moreover, at least some of the same trial team and fact
witnesses will be involved in both the Syngenta antitrust case and the Missouri patent case

Case 1:04-cv-00305-SLR Document 535 Filed O1/07/2008 Page 2 of 2
The Honorable Sue L. Robinson .
January 7, 2008
Page 2
_ In light ofthe potential impact of the Missouri patent action on Syngenta’s
antitrust claims pending before this Court, we thought that, in conjunction with the pending (
Federal Circuit appeal, the Court should be aware of these developments in the Missouri action ‘
in advance of the next hearing at which the Court indicated it would set a pretrial schedule. ·
Respectfully,
/s/ Richard L. Horwitz .
Richard L. Horwitz
841096/28128 ·
cc: Clerk ofthe Court (via hand delivery)
John W. Shaw (via electronic rnail) ‘
Peter E. Moll (via electronic mail)
John J. Rosenthal (via electronic mail) · =
Richard F. Schwed (via electronic mail)

Case 1:04-cv-00305-SLR

Document 535

Filed 01/07/2008

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Case 1:04-cv-00305-SLR

Document 535

Filed 01/07/2008

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