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Give me Liberty or give me...?
by Bob Hartzler

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March 1997 - After much talk over the past decade, transgenic crops have hit the marketplace and are poised to make a significant impact on corn and soybean production in the midwest. One of the products that will be marketed for the first time in the U.S. in 1997 will be Liberty-Link corn. This transgenic crop allows over-the-top applications of glufosinate, marketed as Liberty by AgrEvo. Liberty is similar to Roundup in that it is non-selective and has little or no soil activity. Although there is some translocation of Liberty within plants, it is much less than occurs with Roundup. Application timing and good coverage will be more critical with Liberty than Roundup, and Liberty will not provide long-term control of perennial weeds.

AgrEvo's battle to gain market share is about to begin, however, the battle in the courts has been waging for some time now over several aspects of this specific transgenic crop. Liberty-resistant corn was cleared for use by the USDA/APHIS in June, 1996. AgrEvo planned to make the resistant corn available to seed companies free of charge, choosing to make their profits from selling the herbicide rather than the seed. However, since that time DeKalb Genetics has filed suit against AgrEvo, claiming they own rights to the gene used to transfer resistance. The outcome of this court fight has yet to be determined, and it probably won't be the last dispute over who profits from the fruits of biotechnology.

An article in the March/April issue of Dealer PROGRESS magazine provides a good summary of this particular battle {Dunn, R. F. 1997. What price Liberty? Dealer PROGRESS. March/Apr. 28(3): 30-33}. Included in the article was the following timeline of events in this disagreement between AgrEvo and DeKalb. It provides a good overview of the complexities of these issues and, unfortunately, probably will be repeated in the future with other biotech patent rights.

 

The Liberty Link Licensing Agreement Timeline

 

June 21, 1996 USDA/APHIS clears Liberty-resistant corn seed

August 27, 1996 DeKalb files suit against AgrEvo for patent infringement

October 1, 1996 AgrEvo USA countersues DeKalb

January 13, 1997 DeKalb sends a letter to independent seedsmen stating that Seed Genetics Inc. will assist in licensing its glufosinate-resistant seed and outlining its licensing agreement. Attachments list the specific patents covered and specify a fee is of $12 per 80,000 kernel unit for the 1997 and 1998 growing seasons. DeKalb agrees to pay each licensed seed company $2 per unit as a seed service fee.

January 17, 1997 U.S. EPA grants Liberty herbicide a label.

January 20, 1997 AgrEvo sends letter to independent seedsmen taking issue with the DeKalb license agreement and its relevance to marketing of glufosinate-resistant corn. AgrEvo confirms its offer to indemnify seed companies against any judgments from DeKalb and stresses that Liberty is only labeled for use on Liberty Link seed, requiring a license from AgrEvo. The letter also asks that any companies that chooses to alter their marketing of Liberty Link seed because of DeKalb’s action contact AgrEvo.

January 23, 1997 DeKalb sends a letter to independent seedsmen emphasizing that regardless of AgrEvo’s claims its patents are good. The letter seeks to cast doubt on AgrEvo’s offer of indemnification and states clearly DeKalb’s position versus companies that don’t sign its agreement. The letter over Bruce Bickner’s signature states "indemnification will not preclude your company’s actual participation in our pending litigation. It is not our wish to drag you into this legal battle, but we must defend our intellectual property just as I’m sure you would do under similar circumstances. I urge you to think carefully about what we are offering you."

February 7, 1997 AgrEvo sends a letter to independent seedsmen regarding the patent dispute: "The patent examiner in charge of the AgrEvo patent application has agreed with AgrEvo’s position that an interference should be declared. We expect the U.S. Patent Office to formally declare an interference between DeKalb’s patent and AgrEvo’s patent application in the next few weeks."

February 7, 1997 DeKalb issues a statement to ag chemical retailers and distributors regarding the Liberty herbicide label. DeKalb says a clarifying statement from EPA directs the Liberty label to no longer state that Liberty herbicide is only for application to Liberty Link brand seed. The EPA statement notes that as a result of this ruling, the use of Liberty herbicide on DeKalb GR corn "will not be considered off-label." The DeKalb letter adds: "We expect in the future that AgrEvo will not be telling growers information that is inconsistent with EPA policy."

February 11, 1997 Holden’s Foundation Seeds sends a letter to its customers (independent seedsmen) explaining the terms of Holden’s commercialization agreement for glufosinate-resistant corn. To receive commercialization rights for Holden’s Foundation genetic material containing the "pat" gene (originally provided by AgrEvo), company must demonstrate its holds licenses from AgrEvo and DeKalb. Holden’s will charge no technology fee.

Prepared by Bob Hartzler, extension weed management specialist, Department of Agronomy, Iowa State University

For more information contact:
ISU Extension Agronomy
2104 Agronomy Hall
Ames, Iowa 50011-1010
Voice: (515) 294-1923
Fax: (515) 294-9985
http://www.weeds.iastate.edu
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Common chemical and trade names are used in this publication. The use of trade names is for clarity by the reader. Inclusion of a trade name does not imply endorsement of that particular brand of herbicide and exclusion does not imply nonapproval.