PATENT FIGHTS SLOW TOMATO ROLLOUTS

AMY I. STICKEL

The availability of genetically engineered tomatoes nationwide could be in question, since the three bioengineering firms that have Food and Drug Administration clearance to market those tomatoes are all involved in patent-infringement disputes.

Last month, Monsanto Co., St. Louis, filed a complaint in U.S. District Court in Delaware that alleges DNA Plant Technology, Oakland, Calif., infringed upon two of Monsanto's patents.

The patents in question concern promoter genes and marker genes used to genetically alter tomatoes, giving them a longer shelf life. DNA Plant is currently using the genes in question in its Endless Summer tomato, and the two companies had been in negotiations for cross-licensing the genes. "We have invested 15 years in this technology, and we feel we need to defend our intellectual property," Loren Wassell, a Monsanto spokesman, told SN.

DNA Plant promptly filed a countersuit against Monsanto in federal court in Oakland, alleging the patents that cover Monsanto's technologies are invalid and unenforceable.

Ellen Martin, a DNA Plant spokeswoman, said she suspects Monsanto's lawsuit is part of a negotiating tactic. Wassell would only say Monsanto plans to continue negotiations. Both spokespeople said the two firms hoped to reach an out-of-court settlement.

DNA Plant has been marketing its Endless Summer tomato at Wegmans Food Markets, Rochester, N.Y., since March. The lawsuit could delay a larger-scale rollout until December of this year, according to a DNA Plant statement.

DNA Plant is also seeking U.S. Department of Agriculture and FDA clearance for a version of the Endless Summer tomato that does not carry the two Monsanto genes.

The suits and countersuits between DNA Plant and Monsanto come on the heels of a patent-infringement case recently filed against Calgene Inc., maker of the country's first bioengineered tomato.

Enzo Biochem Inc., a New York-based biomedical research firm, has alleged Calgene, the Davis, Calif.-based firm that created the Flavr Savr tomato, infringed Enzo's patent. Enzo does not market a bioengineered tomato.

The case concluded in late April, and a judge is expected to make a ruling in several months, according to Barry Weiner, executive vice president of Enzo.

At issue is who owns the technology behind the Flavr Savr seeds, from which Calgene's MacGregor tomato is grown.

Weiner told SN that Enzo already holds a patent for the procedure. "This litigation will have absolutely no effect on the rollout of our MacGregor's premium vine-ripened tomatoes," said Roger Salquist, chairman and chief executive officer of Calgene.