After years of taking farmers to court to assert their patent rights, agri-giant Monsanto Co.is being sued by farmers. Lots of farmers.
Judge Naomi Buchwald heard oral arguments Jan. 31 in federal district court in Manhattan on OSGATA et al. vs. Monsanto, the latest courtroom action on a suit filed almost a year ago. Responding to what they say is a climate of fear created by Monsanto’s long series of patent infringement lawsuits, a group representing as many as 25% of the nation’s organic farmers (as well as other non-organic farmers) have sued the global biotech company to allow them to grow in peace.
Monsanto’s attorneys have asked to have the suit dismissed. Buchwald will respond by the end of March.
The innovative suit is brought under the Declaratory Judgment Act, which allows for a preemptive judgment that would clear farmers of infringement suits before they even grow their plants. The farmers are not seeking any money or injunction. Monsanto, represented by Seth Waxman, former U.S. solicitor general under Bill Clinton, has moved to have the case thrown out, saying it is “hypothetical” and “abstract.”
The problem, say the 83 individuals and groups named as plaintiffs in the case, who claim to represent more than 300,000 farmers including many in California, is that Monsanto’s transgenic plants (sometimes called genetically modified organisms, or GMOs) are contaminating organic crops, introducing the unwanted genetic material into their fields. In an ironic turn, the company has often responded by suing farmers for patent infringement, even if those farmers were desperate to keep that material out of the crops and, in fact, if their crops would lose their value because of the Monsanto genes.
“We’ve been farming organically for 35 years, and we’re very concerned with being able to continue on with our livelihood,” says Jim Gerritsen, an organic seed farmer in Maine and president of the Organic Seed Growers and Trade Assn. “We consider the threat of contamination from GMO crops to be significant, and the reality is that the organic market will not tolerate anything that has GMO content, either by design or by contamination.”
Stepping out of a meeting at a farmer’s conference in Bangor, Maine, on Friday, Gerritsen continued, “One of the crops that we grow is organic seed corn. Should that corn get contaminated by Monsanto, we are not only concerned with the extinguishing of the value of that seed, but we would be subject to a patent infringement lawsuit. A family farmer going up against Monsanto, we could easily go bankrupt just trying to clear our name.”
This scenario seems more likely when considering that Monsanto’s patented Roundup Ready lines of crops, which are genetically designed to tolerate the herbicide glyphosate - sold by Monsanto as Roundup – already represent more than 80% of the soybeans, corn, cotton, sugar beets and canola seeds grown in the U.S. In fact, it is highly likely that organic farmers growing anywhere in the country are surrounded by these transgenic varieties in every direction. St. Louis-based Monsanto’s varieties then mix into the organic fields by cross-pollinating via the wind and mixing in seed bins at distributors. The company claims this is unintentional.
The company, however, has sued more than 100 farmers for infringement, and settled quietly with many more, including several high-profile cases in which the farmers clearly argued they did not want the genetic material and did not intend to use it.
Monsanto claims all this flap is unnecessary.
Tom Helscher, director of Corporate Affairs at Monsanto, stated in an email to The Times: “As we have stated clearly, Monsanto never has and has committed it never will sue a farmer if our patented seed or traits are found in his field as a result of inadvertent means. Shortly after OSGTA filed their lawsuit last year, Monsanto communicated directly to counsel for OSGTA that ‘Monsanto is unaware of any circumstances that would give rise to any claim for patent infringement or any lawsuit against your clients. Monsanto therefore does not assert and has no intention of asserting patent-infringement claims against your clients.’ It is our view that there is no real controversy between parties and the case should be dismissed. Our motion to dismiss the case was the subject of the hearing on January 31. The court will decide the issue on its merits and we are confident about our legal and practical stance.”
Dan Ravicher, executive director of the Public Patent Foundation at Cardozo Law School, who is the lead attorney on the suit, says this is a misrepresentation. “This is the exact phrase they’ve said to every single person who’s ever asked them about it, including the judge. One problem is the words ‘inadvertent means.’ Well, they imply in their papers that they submitted to the courts, and they haven’t denied it, that they believe it’s the burden of the organic farmer to use their own property to set up buffer zones, and if an organic farmer isn’t forgoing using their full property to create a buffer zone with their neighbors who are Monsanto customers, well then, any resulting contamination is their own fault and not inadvertent.”
In other words, it’s the responsibility of the non-GMO farmer to keep the GMO off his farm. Patent law is very powerful and gives the holder – usually a large corporation – a fistful of rights. Farmers claim this is not fair.
Ravicher calls the company a “patent troll” and argues in the filed complaint that Monsanto’s use of patents in this way is invalid.
“The patents are invalid for a couple different reasons, including that law requires patented things to have social utility, and GM seed, we will prove, has no social utility. It is not good for society. It is harmful for society, and therefore it cannot be patented,” Ravicher says.
“Second, the patents are not infringed because our clients have no intent to use, or make, or grow the GM plants. So without intent there can be no infringement. That hasn’t been declared by any case yet, so that will be a novel issue.”
The suit presents four such arguments. First, however, Judge Buchwald must find by the end of March that the concerns of these farmers, many of whom are currently not growing key money crops like corn because of the threat of infringement suits, is not a hypothetical or abstract.
“What I think it gets down to is a basic human right that organic farmers have the right to grow on our farms crops that are free from GMO content. And I think that Monsanto needs to keep their pollution on their side of the fence,” says Gerritsen.