Monsanto Files Complaint to Prevent Farmer from Harvesting Patented Seeds for Resale and Planting

by Womble Carlyle Sandridge & Rice, LLP
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On February 5, 2014, Monsanto Company and Monsanto Technology, LLC (“Monsanto”) filed a complaint in the Middle District of Georgia asserting willful patent infringement against a farmer (Christopher Ponder and Chris Ponder Farms, LLC – “Ponder”) for using and planting infringing cotton seed derived from patented cotton seed without authorization from Monsanto.

Monsanto’s complaint relates the company’s investment of hundreds of millions of dollars for more than a decade to develop patented technology for seeds that tolerate the herbicide glyphosate (effective, but environmentally friendly) and to resist leaf and boll-feeding worm species.  The technology has been widely adopted by farmers resulting in decreased production costs and reduced management time.  To monetize its technology, Monsanto uses a license agreement that allows licensees to grow a single commercial crop but not to preserve or later use the seeds produced from that crop.
Monsanto asserts its technologically developed seeds result in cotton that resists the following cotton attacking worms:
The complaint asserts that Ponder never purchased Monsanto seed or agreed to license the Monsanto technology.  Nevertheless, he allegedly collected patented cotton seed without authorization from Monsanto.  Monsanto alleges that Ponder delinted seed for other farmers and traded the delinted seed for chemicals used in the delinting process.  After an 11-month investigation in Tift County, Georgia, spanning 2012 into 2013, Monsanto arranged for meetings with all the farmers implicated by the investigation, except for Ponder who refused to meet or negotiate.

The complaint asserts infringement of U.S. Patent No.6,949,696 (the ‘696 patent) and U.S. Patent No. 7,064,249 (the ‘249 patent).
Monsanto notes in its complaint that “The saving and replanting of patented cotton seed is an involved process requiring active, not accidental, participation and direction by the farmer."  Monsanto explains that the cotton plant produces a cotton boll containing cotton seed that farmers typically take to a cotton gin for processing in modules.  The cotton gin separates the cotton seed from the boll and often keeps the seed as payment for ginning the cotton. While the cotton lint from the boll is the primary product and is used to create fabric, the cotton seed is a secondary product and can be used to produce cotton seed oil.
In order to recover cotton seed for replanting, the farmer must direct the gin operator to capture specific seed from the harvest by identifying the modules from which the seed is desired.  The recovered seed still contains a small amount of lint resulting in the nomenclature “fuzzy seed.”  Before this seed can be used for planting in modern planting equipment, the seed must be delinted.  Monsanto’s complaint alleges that Ponder collected, delinted, and then resold patented seeds for a significantly lower price.  In addition, Monsanto accuses Ponder of delinting the seeds brought to him by other farmers.
For the patent claims, Monsanto seeks an injunction, interest and costs, and damages (for which Monsanto asks trebling).  Monsanto also seeks to recover for conversion and unjust enrichment.
The case is Monsanto Company and Monsanto Technology, LLC v. Christopher Ponder and Chris Ponder Farms, LLC, No. 1:14-cv-00013-HL, in the Middle District of Georgia, Valdosta Division, assigned to U.S. District Judge Hugh Lawson.
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[1] Image from www.utcrops.com.

[2] Image from Entomology 402 File Crop Insects at https://insects.tamu.edu/students/undergrad/emto402/Cotton_files/Cotton_pests_key_bollworm.html.
[3] Image from Managing Insects on Cotton, Jack S. Bacheler, Entomology Extension Specialist, https://ipm.ncsu.edu/cotton/insectcorner/photos/images/Beet_armyworm_larvae_feeding.jpg.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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