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DuPont fails to gain safener supplies from Bayer
Aug. 15, 2008
DuPont has failed to gain a preliminary injunction against Bayer CropScience to ensure the continued supply of the herbicide safener, isoxadifen-ethyl, while a US legal dispute over the contractual arrangements is decided. Bayer sued DuPont for violating the terms of the supply agreement, while DuPont filed a suit against Bayer for breach of contract. DuPont sought a preliminary injunction to ensure supplies of isoxadifen for the 2009 season.
On July 29th, the Delaware Court of Chancery turned down DuPont’s request for injunctive relief, noting that it had not shown “a reasonable probability of success on the merits of its claim”. The Court’s review of the contract showed that Bayer’s interpretation “is more likely the proper construction of the agreement at issue”. Bayer welcomes the ruling as support for its initial arguments in the case and is confident that it will prevail.
Bayer originally argued that DuPont had breached the supply agreement by filing various patent applications referencing isoxadifen without Bayer’s permission and of using the phrase “DuPont Q brand safener technology” in press releases. Bayer no longer makes these claims to support its action, but still insists that DuPont broke the terms of the supply agreement by mixing isoxadifen with non-sulfonylurea herbicides.
DuPont interpreted the contract as allowing it to use isoxadifen in the herbicide, Require Q (rimsulfuron + dicamba), because it was a combination of the safener and “at least one SU [sulfonylurea]”. However, Bayer maintains that the deal allowed DuPont to mix isoxadifen with one or more sulfonylureas, but not to add another active ingredient to the combination. The Court agrees with this interpretation, noting: “nothing in the supply agreement expressly allows DuPont to mix isoxadifen with non-SUs”.
Besides not persuading the Court that it had a reasonable chance of success in the case, DuPont also failed to demonstrate that an injunction was warranted on hardship grounds. While the Court recognised that DuPont would be harmed by failing to secure supplies of isoxadifen, Bayer would also be harmed if it were later vindicated, it points out. The balance of harm “weighs only marginally in favour of DuPont”, the Court found.
Source: Agrow
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