Corteva v. Inari Agriculture - Seed-Biotechnology IP Dispute

IN THE UNIT ED STATES DISTRICT COURT FOR THE DI STRICT OF DEL AWARE CORTEVA AGRI SCIENCE LL C, PIONEER H I - BRED INTERNATI ONAL, INC., AGRIGENE TICS, INC.:::: CIVIL ACTIO N: v.: NO. 23-1059: INARI AGRICULT URE, INC., INARI AGRICULTURE NV:: MEMORANDU M MURPHY, J. * March 2, 2026 This s eed - biotechnology intellectual -property dispute is over two years old. T he parties have been busy. We are about seven months from trial, and the part ies are occupi ed with expert discovery and dispositive motions. As the case begins to ossify for trial, so come the motions to strike and motions for leave to amend. We dispose of two such motions here. One is Corteva’s motion to strike portions of the report o f a n In ar i d amages ex pert, de cided under the Pennypack standard. The other is Inari’s motion for leave to amend its already extensive first amended answer and count erclai ms, decided under Rule 16’s good- caus e standard. Although the motions face som ewhat different s tandards, there is a common theme. Given sufficient resources, ingenious lawyers will always come up with another idea. But at some point, the schedule must become more than a suggestion, and the deciding factor cannot be merely whether the equally ingenious lawyers on the other side can keep up. We resolv e both m otions in favor of Corteva. * Judge John Frank Murphy, of the United States District Court for the Eastern District of Pennsylvania.

2 I. Background Corteva, a long- establi shed pl ayer in ag ricult ural s cience, alleges that Inari, a relativ ely new venture, has been wrongfully exploiting Corteva’s seed technology to enter the market. Corteva’s amended complaint asserts numerous utility patents and plant variety protec tion certificates. Inari counterclaims that Corteva’s intellectual property is invalid, wrongly acquired, and being used for no purpose other than to disparage and bully Inari. Since th e two motions at issue center around the question of wh ethe r Inari acte d too late in the con text of this litigation, a brief timeline sets the stage. Corteva filed a complaint on September 7, 2023, and an amend ed complaint on November 27, 2023. DI 1, 19. On April 10, 2024, the first scheduling order set the close of fact discovery for April 30, 2025. DI 49. That very first schedule had a deadline to move to amend pleadings of September 30, 2024, and it never changed. Id. We den ied In ari’s comprehensive motion to dismiss on August 2, 2024. See Cor teva Agr iscie nce LLC v. Inari Agriculture, Inc., 743 F. Supp. 3d 603 (D. Del. 2024). Inari timely answered (DI 106) but then just after the deadline to amend pleadings, and with Inari’s consent, Cortev a filed a se cond amended complaint on October 1, 2024. DI 148. Soon after, the parties stipula ted to move the close of fact discovery to July 14, 2025. DI 151. Inari filed its answer and countercl aims to the second amended complaint on November 14, 2024. DI 160. On May 13, 2025, we partly granted Corteva’s motion to dismiss some of the count erclaims and stri ke some of the affirmat ive def enses. Corteva Agriscience LLC v. Inari Agriculture, Inc., 2025 WL 1380763 (D. Del. May 13, 2025). We held the Markman hearing on June 3, 2025. DI 291. On July 3, 2025, over Corteva’s objection, Inari moved to extend fact discovery to September 15, 2025, to “complete items of discovery that remain outstanding and to allow the

3 parties to develop facts necessary to try the issues in the case.” DI 331 at 4. We orde red the parties to develop and submit a comprehensive schedule for remaining fact discovery, and to get a trial date set. DI 335. They did, and we reset the close of fact discovery for September 8, 2025, and set the (still holding) trial date of September 23, 2026. DI 350. In September, Inari launched a campaign of last-minute changes to its defenses, including Second and Third Supplemental Invalidity Contentions served just before and just after the close of discovery. Corteva moved to strike some of the new defenses. DI 409, 410. We granted the motion in part because the inequitable conduct defenses had not been pled, and we learned that Inari intended to move to amend the pleadings. DI 421. Soon after, Inari did so. DI 435. Corteva opposed. DI 452. In the meantime, the parties we re preparing their expert reports. On November 4, 2025, Inari served an exper t damage s report of Dr. Marc Zenner, Ph.D. On November 24, 2025, Corteva filed a motion to strike portions of Dr. Zenner’s expert report tha t exceeded what Inari had disclosed during fact discovery. DI 471, 472. Inari opposed. DI 483. By the end of 2025, briefing was closed on these two motions. The deadline for summar y judgment and Daubert motions is about a month away. II. Analysis We will a ddress Cor teva’s motion to strike first, th en I nari’s mo tion to amend the pleadings. a. We grant Corteva’s motio n to stri ke porti ons o f the exper t repo rt of M arc Zenn er, Ph.D. Corteva seeks to strike portions of the expert report of Dr. Marc Zenner, an Inari damages expert. According to Corteva, portions of Dr. Zenner’s report exceed what Inari gave Corteva fair notice of in its pleadings and during fact discovery. Both parties want this dispute addressed

4 under Pennypa ck. Indeed, f aced wit h conflict over late -disclosed evidence, district courts in Delawar e and elsewhere in the Third Circuit consider essentia lly the following factors: (1) the prejudice or surprise in fact of the party against whom the evidence would have been presented, (2) the ability of that party to cure the prejudice, (3) the extent to which the presenta tion of the evidence would disrupt the orderly and efficient trial of the case or other cases in the court, (4) bad faith or willfulness in failing to comply with the court’s order, and (5) the importance of the excluded evid ence. Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 904- 905 (3d Cir. 1977). District c ourts have discret ion to evalu ate these facto rs, an d it works larg ely the same way whether the proponent moves for leave or the opponent moves to strike. See Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997). The disputed opinions relate to Inari’s purported damages arising fro m its counter claims in thi s case. We wrote about som e of those counterclaim s befo re. See C ort eva, 2025 WL 1380763. Dr. Zenner assumes that Inari will be able to prove that Corte va’s lawsuit is me ritless and serves only to tortiously disparage Inari. His assignment, then, was to: • Explain in which ways di sparagem ent aff ects th e value o f a firm in gener al, and of a private emerging growth company such as Inari, specifica lly. • Eval uate whet her Co rteva’s Alleged Miscond uct ag ainst Inari caus ed mat erial impact to I nari’s r eputation, operations, and valuation and to quantify the valuation impact, if any, that In ari incurred from Corteva’s Alleged Misconduct. Zenner R. ¶ 18. Dr. Zen ner analy zed how t he assu med disparag ement can affe ct an em erging company like Inari, including with respect to certain investors and business partners (the “Ten Undisclose d Entities”). He opin ed “that even sm all i ncreases in perc eived riskin ess and s mall delays in Inari’s product roll out reduce the value of I nari by ” a signifi cant percent age of Inari ’s total valuation. Id. at ¶ 20 (constituting a high nine-figure sum). C orteva explains, and Inari

5 does not seriously dispute, that the valuation opinion — and the under lying allegations that this lawsuit ha rmed Inar i’s relationship with the Te n Undisclo sed Entities — were well ou tside t he scope of what Corteva was able to learn from Inari during fact discovery about its damages case. Cortev a’s briefi ng on this point was completely persuasive. Corteva took exhaustive measures in written discovery, the corporate deposition, and correspondence among counsel to nail down exactly w hat In ari’s d amages th eory was and was not. Inari’s arguments in opposition were specious. Cortev a argues, and we a gree, that the court “should not reward Inari for its hide-the- ball tactics by subjecting Corteva to the burden of out-of-time discovery and the harm of pote ntial delay in the cas e schedul e.” DI 487 at 5. Corteva was objectively surprised and of course harmed since it w as deprived of the opportunity to explore the factual ba ses of the opinions and make wha tever ad justments to its tactic s might be warra nted. But Pennypack recognizes that, left unchecked, unyielding procedural formality can interfere with the search for truth and work injustice. Ina ri correct ly points out that the challenged opinions are important to its defense; indeed, what could be of greater strategic significance to a defendant than creating exposure for the plaintiff? And “[t] he impor tance of the evidence is often the most significant factor. ” ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 298 (3d Cir. 2012) (cita tions omitted). Corteva responds that if the opinions were so important, Inari would have surfaced them sooner, but that begs the question. Inari c an also cr edibl y say that whatever disruption Dr. Zenner’s new opinions may cause, Co rteva w ill be ab le to catch up an d prepa re for trial, t he dat e of whi ch is s et about 7 months from now (and it was almost 11 months from the date Inari serve d Dr. Zenner’s opinion).

6 That is doubtless true; this is a high - stakes case an d Cort eva’s ext remely comp etent law yers can and will adjust to anything thrown at them — they probably already have. Thus, the prejudice seems curable, costly and painful as it may be. We could even shift fees to Inari for that. Nor i s there any sign of bad faith. It appea rs that Inari ’s legal t eam and D r. Zenner just thought of the new appro ach after the cl ose of fact discovery while working on his report. Inar i doesn’t admit that, but t he record o f fers no other possibility (aside from Corteva’s super ficial i nference o f bad faith). D I 483 at 2 4. Important new evidence, curable prejudice, and no bad faith? The Pennypa ck fact ors seem to be saying that this is a win for Inari. But why does that seem absurd in the context of a big pat ent case? The scheduling order in a case like this is heavily negotiated and exquisitely detailed. Large teams of sophisticated counsel ramp up their effor ts and m ake tacti cal deci sions in total reliance on that schedule. And “[d] eadlines are not suggestions. Litigants must respect them. ” Archer v. Defend ers, Inc., 2021 WL 3033 347, at *1 (D. Del. Jul. 19, 2021) (Bibas, J., sitting by designation). Each deadline along the way, not just the one for trial, imposes forks in an unendingly forked road. With accom mo dations for the usual unpredictable happenstance of litigation, at some point, the parties are entitled to find repose in the scheduling order. Stripping away the clutter, Inari is saying that there’s just no such thing as trying to understand with certaint y the f actual bas is o f an opponent’s damag es theory before the e nd of fact disco very. You’ll find out in the opening expert report and then you can adjust afterwards. How can th at be right? To help dispel the cognitive dissonance, take a bri ef and refreshing detour into the facts of the 50- year -old Pennypack de cis ion. That decision was about the last-minute disclosure of

7 two “key w itness es” in a civi l - right s case. Penn yp ack, 559 F.2d at 903-04. Th e witness es were a land dev elop er and a fo rmer presid ent of the def endant housing association, which had been accused o f racially discrim inato ry practices. Id. at 9 03-04. The plain tiff di scov ered th em after the pretrial memo randum was f iled. Id. at 905. They would have testified in a bench t rial that the defendant had a reputation in the black community as an all-white development in which black applicants could not buy hom es. Id. at 904. The tes timony was “ important” and its absence “crit ical.” Id. The Third Circuit held that the district court had abused its discretion by excluding the two late- disclosed witne sses. Id. at 905. As the decision points out, because it was a bench tri al, all t he district court had to do was “adopt [] perhaps, an adjournment of a few days while Pennypack conducted discovery with costs taxed to Meyers. ” Id. That su dden feel ing of cl arit y readers may b e experi encing, w e submit, is the difference between a n oft - excerpt ed l ist of factors and a holding set in its proper context. Dr. Zenner’s new opinions, while “important,” are not analogous to Pennypack ’s two late -discovered and then- disclosed third -par ty witnesses who knew previously unheard material facts. Dr. Zenner is a distinguished profe ssional expert who charges $1500 per hour and relies on a team o f assis tants. Zenner R. ¶¶ 1-12, 19. The reco rd does n ot indicate when Inari retained Dr. Zenner, but by not arguing that Dr. Zenner was a lat e -discovered witness (that would have been odd), we take it Inari would not disagree that Dr. Zenner was retained early enough that he had ample opportunity to develop his theories. And surely Dr. Zenner was in deep collaboration with the legal t eam — entirely appropriate, but the point is that the evidence of his opinions is tightly intertwine d with the litig ation stra tegy, unlike the two third- party fact witness es in Pennypack. In the world of patent litigation, and certainly the damages side of the case, there is always

8 another idea, always a way to adjust, always a way to improve — but the schedul e forces the case to move forward to a conclusion. In its brief, Inari nowhere sugge sted t hat it did not have enough time, resources, or brainpower to come up with its damage s theorie s on time, nor did it suggest that it had to react to some surprising turn of events. There are diff erenc es on the p rejudice s ide as well. In P ennypa ck, at most all that wa s required was a couple short depositions to prepare for trial testimony that itself could be received at any time convenient for the judge as part of the bench trial. Here, the s cale o f the preju dice i s masked by the scale of this litigation. To observe that Corteva can adju st its tactics, hire a responsive expert, pursue third-party discovery, take depositions, and so on, is a function of the resources justified by the high stakes of this case. Further, the nature of an opponent’s damages theory has unpredictable, unknowable, a nd path -dependent consequences for a party’s overall approach to the case. Time only flows forward in litigation, and advantages and disadvantages often accrue and dissipate permanently. That is why in professional sports, some plays are reviewabl e and s ome are not. This analysis should not be read as any sort of criticism of Pennypack, which is as sound a holding today as it was 50 years ago. But this is a c riticism of c utting - and -pasting the Pennypack factors into the middle of a fight about a sophisticated damages expert in a sprawling patent litiga tion and expecting the results to make sense auto matically. Corteva should not have to pretend that Dr. Zenner’s opinions are not “important” to Inari ’s case or feign inability to adjust to the new opinions before t rial. Nor is ther e any need to sling allegations of bad faith. For exactly the reasons explained in Pennypack, this is decidedly not a situation where the

9 schedule should flex to accommodate an important, but belated, idea. T he motion to strike is granted. b. We deny Inari ’s motion for leave to amend its answer, affirmative defenses, and co untercl aims. Inari f iled its motion to a mend its answer and cou ntercl aims o ver a yea r after t he agreed deadline for amending pleadings and after the close of fact discovery. Ther efore, Inari mus t demonstrate good cause. Fed. R. Civ. P. 16(b)(4). The Third Circuit has reaffirmed many times that a plaintiff’s diligence factors into a showing of good cause. Premier Comp Sols., LLC v. UPMC, 970 F.3d 316, 319 (3d Cir. 2020) (citations omitted). I n this district, judges often view a lack of diligence as dispositive. State Farm Mut. Auto. Ins. Co. v. Amazon.com, Inc., 2024 WL 4145022, at *2 (D. Del. Sep. 11, 2024) (“If that party has not been diligent, the inquiry ends[.]”) (citation omitted). We may also consider futility and prejudice to the non-moving party. Foman v. Davis, 371 U.S. 178, 182 (1962). Inari’s an swers w ere n either ter se nor r ushed. The firs t stat ed 28 affirm ativ e defens es and 10 counterclaims span ned 50 pages. DI 106. The s econd v ersion es calated to 42 affi rmat ive defenses and 16 counterclaims stated across 87 pages. DI 160. Inari did not offer a mendments in response to Corteva’s motion to dismiss or strike, and it did not seek a n extended deadline for amending the pleadings. Now, Inari’s proposed amendments tack on four more aff irmative defenses and th ree more count erclaims as follows: 1. C laims 7 -9 of the 363 patent a re invalid for improper inventorship (DI 436 at 88 (affirm ative d efense 4 3), cou ntercl aims ¶¶ 15 1 -52); 2. Cl aim 2 of the 441 patent is invalid for improper inventorship (id. at 8 8 (affirmative defense 44), counterclaims ¶¶ 164-65); 3. Claim 6 of the 522 patent is invalid for improper inventorship (id. at 8 8 (affirmative defense 45), counterclaims ¶¶ 136-40); 4. The 522 patent is unenforceable for inequitable conduct (id. at 8 8 (affi rmati ve defense 46), ¶¶ 242-53 (counterclaim count 17));

10 5. Declaration that Corteva’s PVP certificates are invalid under 28 U.S.C. §§ 2201 and 2202 (id. ¶¶ 253 -62 (counterclaim count 18)); and 6. Declarat ion th at so - called “Exhibit 1 Un asserte d Utility Patents” are inv alid under 35 U.S.C. § 102(b) and, Inari says, 28 U.S.C. §§ 2201 and 2202 (id. ¶¶ 263-71 (counterclaim count 19)). The new inequitable conduct defense breaks down into four theories, accurately described by Corteva and paraphrased below: 1. Corteva and inventors Dr. Terry Wright, and Mr. Just in Lira fa iled to disc lose a litigation (id. at ¶¶ 243 -44); 2. Corteva and Dr. Wright failed to disclose data from trials concerning AAD-12 and resis tance t o pyrid yloxy acetate h erbicid es as described in a 2017 email chain (id. at ¶¶ 245-46); 3. Dr. Wright made statements in declarations submitted during prosecution of an unre lated paten t that are a llegedly in consistent with sta tements in th e 522 patent (id. at ¶ 247); and 4. Dr. Wright and Corteva did not name Dr. Zhanyuan Zhang as an inventor on the 522 patent (id. at ¶¶ 126, 248). DI 452 at 12-13. 1 At the outset we touch on three preliminary points. First, we will consider good cause issue -by-issue, as the parties have, but we note that the broad nature of the proposed amendments gives the distinct impression that this is not an example of adding an uncovered allegation la te but as soon as possible. If that were true, there would have been multiple proposed amendments made at t he times when e ach be came rip e. Rather, it appears th at Inari simpl y dump ed everything else it could think of into a final end - of -discover y salvo. That is not a recipe for good cause. Second, a commo n thread running through Inari’s arguments is that Inari diligently 1 It is fair to ask whether Inari failed to carry its burden to show good cause simply because its brief obscured, rather than clarified, what exactly was added by presenting the material in disorganized fashion — both in the proposed pleading a nd in the supporting brief. In its reply brief, Inari complained that Corteva misconstrued and misapprehended the nature of the amendments. If that’s true, then we give Corteva partial credit for trying, because it was an objectively confusing exercise.

11 sought amendment after learning of new information, and that is enough. It may be, sometimes, but that is not the general rule. The need for diligence does not run from the moment a new fact is uncovered until the moment of moving for leave to amend. Rather, it encompasses the totality of discovery. E.g., Magsil Corp. v. Seagate Tech., 2010 WL 2710472, at *2 (D. Del. July 7, 2010) (denying leave to amend even though key facts were revealed in a late deposition because of “ Defendants ’ decis ion to wait until lit tle more th an one mon th before th e close of f act discovery to depose such a major witness ”). Third, we agree with Corteva that the proposed amendments work the expected prejudice because of the late hour, especial ly becau se of t he need for third -party discovery. But Inari i s cor rect, as a practi cal matt er, th at the parties could op en paralle l tracks to address th e new is sues, so the pre judice is curable to a degree. Ultima tely, diligence guides our decisions here. Improper inventorship (affirmative defenses 43-45). Inari’s theory is that the 363, 441, and 52 2 patents are inval id because they failed to name Dr. Zhang as an inventor. Dr. Zhang is an Inari employee. DI 453-6. For the 363 and 441 patents, Inari’s allegations are based on a 2011 report — said by Inari to be the basis of the two patents — listing Dr. Zhang as a contributor to the report. DI 436 ¶¶ 151, 164. It is un clear if th e report is publicly available, but Inari does not di sagree t hat C orteva p roduced the report in March 2025. For the 522 patent, Inari’s allegations are based on a 2010 published scientific paper by inventor Dr. Wright — said by Inari to be the basis of the patent — that also refere nces Dr. Zhang as a contributor. DI 436 ¶ 138. Thus, before moving to amend, Inari had unlimited access to one allegedly significant publication and the purported unnamed inventor, and seven months of access to the other allegedly significant report. Ina ri cannot dig itself out of the diligence hole that its own proposed

12 amendmen ts dug. Inari’s response is to point to other information it supposedly learned and argue that a pleading need not set forth all evidence that supports a claim for relief. DI 458 at 9. That entirely misses the point and does not explain how Inari could be said to be diligent pursuing these theories. We agree with Corteva that I nari did not show good cause for adding affirmative defenses 43, 44, and 45. Inequitable conduct (affirmative defense 46 & count 17). Inari’s inequitable conduct defense has four separate grounds, one of which — inventorship of the 522 patent — we may dispose of immediately for the same reasons discussed above for affirmative defense 46. Two remaining grounds suffer from similar facial dilige nce problems. First, I nari allege s that Corteva, Dr. Wright, and Mr. Lira failed to disclose to the Patent Office a related ongoing litigation. DI 436 ¶ 244. Second, Inari alleges that Dr. Wright m ade statem ents in declar atio ns filed with th e Patent O ffice tha t were inco nsistent with the f ace of the 522 patent. Id. at ¶ 247. The relev ant fil e wrapp ers (decl arati ons incl uded) and the l itigat ion were, of cour se, al ways public knowledge, making Inari presumptively undiligent. In response, Inari retreats, claiming that these facts merely tend to support an inference of intent rather than state separate grounds for inequitable conduct. DI 458 at 8. If that is true, then it serves only to further erode Inari’s argument for diligence for its final ground, which we turn to next. That leav es Inari’s allegation tha t Dr. Wr ight failed to dis close to the Patent Of fice materia l testing da ta from 2009 field probe trials said to contradict statements in the 522 patent. DI 436 ¶¶ 245-46. This theory relies on a 2017 e-mail from Dr. Wright “in relation to the 2009 trials” that, according to Inari, suggests that Dr. Wright knew the tria l data was problematic. Id. at ¶ 245. Corteva says, and Inari does not disagree, that it produced that e-mail in March 2025.

13 Inari did not notice Dr. Wright’s deposition until June 2025. To deflect from this apparent lack of diligence, Inari argues that it “did not have all of the elements of its proposed inequitable conduct counterclaim and defense until it received from Corteva on and after t he close of f act discovery” the 2009 field probe trial data. DI 458 at 8-9. But that argument is unpersuasive for two rea sons. First, it is i nconsiste nt with the pleadings themse lves, wh ich plac e materia l weight on the correspondence, not the data. DI 436 ¶ 245 (“ The corr espond ence st ates that the activ ity against triclopyr and fluroxypyr was ‘absolutely insufficient for any commercial purpose,’ in direct contradiction of representations in the ’522 patent.”). Second, again, Inari takes too cramped a view of diligence. The question is, what has Inari been doing throughout the time when it has reason to develop defenses relating to the 522 patent and its inventor? And the answer is, nowhere near enough to justify such a significant am end ment to its counter claims after the close of discovery. We agree with Corteva that Inari did not show good cause for adding affirmative defense 46 or count 17. Declara tion of PVP ce rtificate invalidity (count 18) and declaration of unasserted utility patent invalidity (count 19). Inari groups these proposed amendments together, arguing that depositions of Corteva witnesses taken on July 30, August 6, August 6, and August 21, 2025, reveal ed the basi s for the late amendments. T hat may be true (it is not e asy to tell o n this limited rec ord), b ut what Inar i leaves out is w hy those depositions came so late, or why it waite d until July 16 and August 8, 2025, to serve the document request s seeking t he relev ant agr eements with third -pa rty growers. Inari did not address that critical aspect of good cause in its opening motion. Nor did Inari provide an explanation in its reply brief after Corteva pointed out this

14 problem. Thus, we are compelled to agree with Corteva that Inari failed to show good cause for the invalidity counterclaims (count 18 and count 19). III. Conclusion For the reasons outlined above, we grant Corteva’ s motion to strike portions of the expert report of Dr. Marc Zenner, and we deny Inari’s motion for leave to file a second amended answer and count erclai ms.

IN THE UNIT ED STATES DISTRICT COURT FOR THE DI STRICT OF DEL AWARE CORTEVA AGRI SCIENCE LL C, PIONEER H I - BRED INTERNATI ONAL, INC., AGRIGENE TICS, INC.:::: CIVIL ACTIO N: v.: NO. 23-1059: INARI AGRICULT URE, INC., INARI AGRICULTURE NV:: ORD ER AND NOW, this 2 nd day of March 2026, upon considering defendan t s’ motion for l eave to amend its answer, affirmative defenses, and counterclaims (DI 435), plaintiffs’ opposition (DI 452), defendants’ reply (DI 458), plaintiff s’ motion to strike portions of the expert report of Marc Zenner, Ph.D. (DI 471), defendants’ opposition (DI 483), plaintiffs’ reply (DI 487), and for reasons in the accompanying memorandum, it is ORDERED: 1. Defend ants’ mo tion fo r leave to am end i ts answer, affirm ative d efens es, an d counterclaims (DI 435) is DENIED. 2. Plaintiffs’ motion to strike portions of the expert report of Marc Zenner, Ph.D. (DI 471) is GRANTED. ____________________ ______ M URP H Y, J.