Seed of Patent Infringement Germinates Between Organic Farmers and Monsanto

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In a significant legal decision with a connection to Vermont’s farming community, the United States Court of Appeals for the Federal Circuit has affirmed that organic farmers cannot obtain a judicial declaration to prevent Monsanto from suing them in the future for violating its patents on seeds.    The Federal Circuit court is the court of appeal for all patent cases, below only the U.S. Supreme Court.  The court said that the farmers do not have “standing” to seek such a declaration against Monsanto because they are themselves in no danger of being sued by Monsanto for “inadvertent” infringement of Monsanto’s seed patents.

Monsanto owns a number of patents on transgenic crop seeds – seeds that are genetically engineered to survive the spraying of herbicides to control weeds in the crop fields.  Farmers who purchase Monsanto’s GMO seeds must agree not to harvest the seeds from the resulting adult crops and use the harvested seeds for planting without Monsanto’s permission.  In effect, when a farmer purchases Monsanto’s patented GMO seeds, he or she is agreeing to use the seeds – i.e., Monsanto’s patented technology – for one-time use.  Monsanto has a history of suing farmers who harvest and replant its seeds.  Because Monsanto owns the patents on the seeds, their use without Monsanto’s permission constitutes patent infringement.

A large group of organic farmers and anti-GMO organizations, including Chittenden County state senator David Zuckerman, who owns an organic farm in Hinesburg known as Full Moon Farm, Inc.,  Northeast Organic Farming Association of Vermont (NOFA), and Rural Vermont, filed suit in federal court in New York in March of 2011.  They sought what is known as a “declaratory judgment” – an anticipatory legal ruling that Monsanto’s GMO seed patents are invalid and that Monsanto should be barred from suing them if their crops are inadvertently pollinated by crops grown in nearby fields with Monsanto’s GMO seeds.  “Inadvertent” pollination can occur if, for example, corn plants grown in a field using non-Monsanto seeds are pollinated by corn pollen blown in on the wind from a nearby field of Monsanto corn.  The non-Monsanto corn plants that are inadvertently pollinated  by Monsanto corn pollen then produce seeds that contain Monsanto’s GMO technology.

In deciding whether to grant a declaratory judgment, the question before the New York federal court was: were any of the organic farmer plaintiffs in actual danger of having to face a patent infringement lawsuit by Monsanto if their crops were inadvertently pollinated?  The court said no.  True, Monsanto has a history of suing farmers who use harvested Monsanto seeds for replanting.  In fact, as recently as May, the U.S. Supreme Court in a 9-0 decision sided with Monsanto against a farmer in Indiana. The Court held that Vernon Bowman’s harvesting and replantation of Monsanto soybeans was patent infringement against Monsanto.  In this case, however, Monsanto made public that it had no intention of suing organic farmers whose crops might be inadvertently pollinated by Monsanto corn.  In response to Monsanto’s statement, the plaintiffs demanded a blanket promise from Monsanto never to sue them.  The New York federal court concluded that, because the plaintiffs were not in any real danger of being sued by Monsanto, they had no legal standing to seek a declaratory judgment that Monsanto cannot sue them.  Indeed, the court stated that the plaintiffs’ demand for a blanket promise from Monsanto never to sue them was an attempt to create a legal controversy where none existed.  The court dismissed plaintiffs’ argument that they felt threatened by Monsanto’s refusal to give a blanket promise never to sue them.  The court characterized plaintiffs’ arguments as “baseless” and “groundless” and their tactics as “not to be tolerated”  and “unacceptable.”  The court further stated that plaintiffs’ demand of a blanket promise from Monsanto “was clearly intended to be used as a prop in this litigation,” and a “transparent effort to create a controversy where none exists.”  The court therefore dismissed the lawsuit.  Not content, plaintiffs appealed to the Federal Circuit.

The Federal Circuit court affirmed the dismissal, agreeing with the lower court that the plaintiffs had no standing to ask for a declaratory ruling when they were in no real danger of being sued by Monsanto, although the Federal Circuit’s language was not as critical of the plaintiffs was as the lower court’s.  The Federal Circuit pointed out that the plaintiffs’ alleged fear of a lawsuit from Monsanto was “too speculative.”

So, was the lawsuit by the organic farmer-plaintiffs merely an effort to attract attention to their anti-GMO, anti-Monsanto cause?  If so, is that a proper use of the court system?