A closely watched lawsuit against chemical giant Monsanto by a group of organic farmers is headed for court again. The case questions Monsanto’s legal basis for genetically modified seed patents and seeks blanket protection from patent-infringement lawsuits for farmers should their crops become contaminated through unwanted pollination by Monsanto’s genetically altered plants.
By law, certified organic crops cannot contain genetically modified material.
While most of the plaintiffs in the case are organic farmers, some are conventional farmers who choose to farm with seed that hasn’t been genetically modified and face the same risks of contamination. Genetically modified seeds are protected by patents and farmers who grow genetically modified crops must buy new seeds each year and are barred from employing traditional seed saving practices.
In February, U.S. District Judge Naomi Buchwald of the Southern District of New York dismissed the case brought by the national Organic Seed Growers and Trade Association, which is based in Washington, Maine, and whose board president is Maine potato-seed farmer Jim Gerritsen of Wood Prairie Farm in Bridgewater. OSGATA seeks to have the judgment reversed and the case sent back to federal district court. Monsanto will argue that Buchwald’s decision should stand.
The lawsuit was originally filed in March 2011 by OSGATA and more than 70 agricultural and consumer groups, with legal backing from the Public Patent Foundation, a nonprofit group that works to reduce abuses of the U.S. patent system.
In dismissing the case, Buchwald acknowledged that some of the plaintiffs had stopped growing certain crops for fear of being sued, but ruled the plaintiffs lacked standing to bring the lawsuit and called the farmers’ claims that they could be subject to patent-infringement lawsuits “unsubstantiated” because “not one single plaintiff claims to have been so threatened.”
Legal briefs were filed by both parties this summer, and joined by a number of friend of the court briefs. Each side will have 15 minutes to present its case and the three-judge panel can then question the attorneys, if it chooses.
Calling the case one of basic property rights, Gerritsen said, “what our briefs show is that (Buchwald) committed certain legal and factual errors that led her to the wrong conclusion and led her to dismiss the case.”
OSGATA’s brief names specific farmers who have stopped growing certain crops because of fear of contamination and subsequent lawsuits by Monsanto. The brief also names plaintiffs, including Maine-based Fedco Seeds, that have discovered unwanted genetic contamination when they’ve sent their seed out for third-party testing. The plaintiffs claim Buchwald ignored Supreme Court precedent relating to intellectual property law and patent infringement litigation in rendering her decision.
Dan Ravicher, founder and executive director of the Public Patent Foundation, will agrue on behalf of OSGATA. The nonprofit seed association is currently raising money to allow its member farmers to travel to Washington, D.C., to hear the oral arguments. During oral arguments in January in New York, 60 farmers from more than 20 states and Canadian provinces filled the courtroom.
St. Louis-based Monsanto filed the motion that led to the dismissal of the case and has maintained throughout the case that it doesn’t sue farmers whose crops are inadvertently contaminated by its genetically modified seeds. Representatives of Monsanto did not return calls seeking comment before deadline.
In a statement issued after Buchwald dismissed the lawsuit, Monsanto said the judge’s ruling “makes it clear that there was neither a history of behavior nor a reasonable likelihood that Monsanto would pursue patent infringement matters against farmers who have no interest in using the company’s patented seed products.”
Each year, Monsanto investigates roughly 500 farmers for possible patent infringement. Monsanto sued 144 farmers between 1997 and 2010 and settled 700 cases out of court during the same period. The Court of Appeals should return a verdict within three months of the hearing. - Avery Yale Kamila,