Wednesday, June 12, 2013

Organic Seed Growers & Trade Ass'n v. Monsanto Co.

Jun 10: In the U.S. Court of Appeals, Federal Circuit, Case No. 12-1298. Appealed from the United States District Court for the Southern District of New York. Appellants, a coalition of farmers, seed sellers, and agricultural organizations, sought declaratory judgments of non-infringement and invalidity with respect to twenty-three patents owned by Monsanto Co. and Monsanto Technology, LLC (collectively Monsanto). The district court concluded that there was no justiciable case or controversy and dismissed for lack of jurisdiction.
    The Appeals Court indicates that, "Because Monsanto has made binding assurances that it will not 'take legal action against growers whose crops might inadvertently contain traces of Monsanto biotech genes (because, for example, some transgenic seed or pollen blew onto the grower's land),' . . . and appellants have not alleged any circumstances placing them beyond the scope of those assurances, we agree that there is no justiciable case or controversy. We affirm."
    Among other allegations, ". . .appellants also complain that they are harmed by exposure to the allegedly adverse health effects of genetically modified seeds and glyphosate; longterm environmental impacts of genetically modified seeds; economic costs following from contamination of conventional crops by transgenic seeds and glyphosate; and the costs of anti-contamination precautions taken for purposes other than avoiding suit (i.e., to maintain organic certification). But as the appellants concede, 'a declaratory judgment here would do nothing to eliminate the risk of transgenic seed contamination.' . . . Aside from the risk of suit by Monsanto, none of the alleged harms caused by contamination is traceable to Monsanto's enforcement of its patents, they could not be remedied by a declaratory judgment, and they cannot serve as a basis for jurisdiction in this case.
    "In sum, Monsanto's binding representations remove any risk of suit against the appellants as users or sellers of trace amounts (less than one percent) of modified seed. The appellants have alleged no concrete plans or activities to use or sell greater than trace amounts of modified seed, and accordingly fail to show any risk of suit on that basis. The appellants therefore lack an essential element of standing. The district court correctly concluded that it lacks Declaratory Judgment Act jurisdiction."
    The organization, Beyond Pesticides, summarizes the case saying, ". . .the Federal Circuit ruled Monday that a group of organic and otherwise non-GE farmer and seed company plaintiffs are not entitled to bring a lawsuit to protect themselves from Monsanto's transgenic seed patents after Monsanto made binding assurances that it will not take legal action against growers whose crops might inadvertently be contaminated with traces of Monsanto biotech genes."
    While this may seem confusing, Beyond Pesticides explains saying, "Organic farmers and others have worried for years that they will be sued by Monsanto for patent infringement if their crops get contaminated with Monsanto genetically engineered (GE) material from GE crops. Organic and non-GE farms get contaminated when pollen or seed migrate from neighboring GE farms. Even though wind or insect transfer of pollen is a natural process, Monsanto has been suing farmers for infringing on their patents if contamination is found on their farms. Monsanto's history of aggressive investigations and lawsuits brought against farmers is a major source of concern for organic and non-GE agricultural producers since Monsanto's first lawsuit brought against a farmer in the mid-'90s. As of 2012, Monsanto has filed 142 alleged seed patent infringement lawsuits involving 410 farmers and 56 small farm businesses in 27 states." The case was a preemptive effort by plaintiffs to protect themselves from being accused of patent infringement should their crop ever become contaminated by Monsanto's GE seed.
    Plaintiffs' attorney, Dan Ravicher of the Public Patent Foundation (PUBPAT), views the decision as a partial victory.  He said, "Before this suit, the Organic Seed plaintiffs were forced to take expensive precautions and avoid full use of their land in order to not be falsely accused of patent infringement by Monsanto. The decision today means that the farmers did have the right to bring the suit to protect themselves, but now that Monsanto has bound itself to not suing the plaintiffs, the Court of Appeals believes the suit should not move forward." Maine organic seed farmer Jim Gerritsen, president of lead plaintiff Organic Seed Growers and Trade Association said, "Even though we're disappointed with the Court's ruling not to hear our case, we're encouraged by the court's determination that Monsanto does not have the right to sue farmers for trace contamination. However, the farmers went to court seeking justice not only about contamination, but also the larger question of the validity of Monsanto's patents. Justice has not been served."
    Dave Murphy, founder and executive director of Food Democracy Now!, a co-plaintiff in the lawsuit, "Today's ruling may give farmers a toehold in courts regarding the unwanted contamination of their crops, but it does not protect our food supply from the continued proliferation of Monsanto's flawed technology. The real threat of continued contamination of our nation's food supply was only highlighted last week when Monsanto's unapproved GMO wheat was discovered in an Oregon farmer's field more than 10 years after it was legally planted in that state." Beyond Pesticides indicates, "The decision allows farmers who are contaminated to sue Monsanto and Monsanto's customers for the harm caused by that contamination without fear of a retaliation patent infringement claim against them by Monsanto." Despite this Court of Appeals' decision, the plaintiffs still have the right to ask the Supreme Court to review the Court of Appeals decision and ultimately reinstate the case. Organic Seed plaintiffs are considering such action.
    Access the complete opinion (click here). Access lengthy release with links to related information from Beyond Pesticides (click here). [#CAFed, #Agriculture, #Toxics]
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