Agrow's Patent Aggro

by Agrowmax

The top story on Agrow.com recently led with a dispute between Sumitomo/Valent and Syngenta over an alleged patent infringement over Sumitomo's clothianidin. In brief, Sumitomo and Valent have filed claims to the International Trade Commission and the US District Court for Western Wisconsin alleging that Syngenta has infringed US5034404 by selling combination products comprising clothianidin, and that a patent issued to Syngenta, US7105469, which claims the application of clothianidin onto a "transgenic useful plant" should be declared invalid.

These kinds of disputes are rarely good for the industry and it's the patent attorneys that end up winning as both sides spend huge amounts of money prosecuting or defending their cases.

By coincidence, I was chatting recently with a small group of patent examiners. I asked them if a patent office could be open to litigation if they allow a patent to be published because they had missed something during the examination process: they're not. However, one told me that the US patent office is in a mess and that there are powerful lobbying groups, especially patent attorneys, who would keep it that way. The logic follows that the more an overworked patent examiner misses, the more likely litigation will ensue and therefore the more business there will be for the patent lawyers.

Presciently, I also asked one examiner whether pesticides could be claimed for use against transgenic crops, and the examiner, who was a biotechnology expert, thought that such a claim would be doubtful. After all, if one claims a pesticide for use on a potato, then a transgenic potato is still a potato.

Crop protection is a difficult and costly business. While the USPTO cries out for reform, and in the meantime considers some interesting solutions, more and more money that should be going into research ends up as luxury cars sitting in the garages of the patent attorneys.

Agrowmax