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Bayer/DuPont contest safener deal
Jul. 23, 2008
DuPont and Bayer CropScience are embroiled in two US lawsuits over a contract to supply Bayer’s herbicide safener, isoxadifen-ethyl, to DuPont. In 2006, Bayer agreed to supply the safener to DuPont for use in its maize herbicides as part of a wider technology access deal. However, disagreements over the use of the safener led to Bayer filing a lawsuit against DuPont in North Carolina and DuPont suing Bayer for breach of contract in Delaware. Both lawsuits were filed on May 5th.
Bayer maintains that DuPont has breached the terms of the supply agreement by filing various patent applications referencing isoxadifen without Bayer’s permission. Bayer also argues that two of DuPont’s isoxadifen-containing maize herbicides exceed its rights to use the safener. Earlier this year, DuPont received US registration for the two herbicides, Require Q (rimsulfuron + dicamba) and Resolve Q (rimsulfuron + thifensulfuron-methyl).
DuPont has supplies of Require Q and Resolve Q for this season, but matters came to a head when the company placed a March order for 2009 supplies of isoxadifen. DuPont specified that the order had to be shipped from Bayer’s facilities in Germany by August 4th 2008 to ensure delivery to DuPont by September 1st 2008. DuPont wrote to Bayer in April denying that it had breached the supply agreement and disputing Bayer’s right to terminate the deal. Legal action was subsequently taken by both parties.
In early July, the Delaware Court of Chancery denied Bayer’s request for a stay of DuPont’s action, noting that it had jurisdiction and was “best positioned to expeditiously resolve this time-sensitive dispute”. A ruling is pending on whether Bayer must continue to supply isoxadifen while the case is being heard. Meanwhile, Bayer continues to pursue its action in North Carolina. DuPont views that complaint as “baseless” and maintains that Bayer has no right to terminate the supply agreement. Bayer contends that DuPont has failed to comply with the terms of the deal and believes that it will prevail in its position on the issue.
Source: Bayer
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