How to Dodge a Declaratory Judgment Suit – by Website Disclaimer?

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Fresh off its Supreme Court win last month, Monsanto has notched another appellate victory in a case relating to its patents on “Roundup Ready” genetically modified seeds. This most recent case involved an attempt by a group of organic farmers to challenge Monsanto’s patents in a declaratory judgment action, alleging that they feared being sued by Monsanto in the event that their crops are inadvertently contaminated by Roundup Ready seed. Given Monsanto’s repeated representations that it had no intention of suing the farmers for any such inadvertent use of the seed, a lower court dismissed the lawsuit last year.

On June 10, the Federal Circuit affirmed the lower court ruling, finding that the farmers could not establish a substantial risk that Monsanto would sue and, hence, did not have standing. See Organic Seed Growers et al. v. Monsanto Co., Appeal No. 2012-1298 (Fed. Cir. June 10, 2013). Pointing to a statement on Monsanto’s website and several representations by Monsanto’s counsel both before and during the litigation that Monsanto would not sue the plaintiffs, the court held that the plaintiffs could not establish a justiciable case or controversy.

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