“Society stands on the precipice of forever being bound to transgenic agriculture and transgenic food” reads the first sentence in the amended complaint filed by farmers, environmentalist, researchers and consumer groups against Monsanto.
If Organic farmers, seed growers, and companies have no assurance that technology they have never asked for, never signed a licensing agreement to use, have no desire to be a part of, and in fact, go to great lengths to avoid, can still trespass on their farms and subject them to a lawsuit by the patent holder who seemingly escapes all liability for that trespass, then it is not only morally wrong, ethically unjust, but also legally perverse.
These sentiments, uttered by plaintiff Marty Mesh, Executive Director of Florida Organic Growers, concisely sum up the suit against Monsanto. This effort has recently gained twenty-three new members as the broad coalition seeks protection against suits by Monsanto for patent infringement on the company’s transgenic seed (a.k.a. genetically modified). “Through this action, Plaintiffs ask the Court to declare that, should [farmers' fields] ever be contaminated by Monsanto’s transgenic seed, [farmers] need not fear being sued for patent infringement.”
The suit also challenges the validity of Monsanto patents arguing that they fail to satisfy the requirements of the Constitution as well as the Patent Act. Citing Justice Story who stated in an 1817 decision that to be patentable an invention must not be “injurious to the wellbeing, good policy, or sound morals of society,” and “a new invention to poison people … is not a patentable invention,” plaintiffs plainly state that transgenic seeds, particularly Monsanto’s transgenic seeds, are “‘injurious to the wellbeing, good policy, or sound morals of society’ and threatens to ‘poison people,’” and therefore cannot constitute patentable inventions.
The suit also alleges that Monsanto’s patents are additionally invalid for “other failures to meet the requirements of patent law.” According to the filed complaint,
each [patent] violates the prohibition against double patenting, each is anticipated or rendered obvious by prior art, and each fails to satisfy the requirements of written description, enablement and best mode. Monsanto’s patents would also not be infringed by Plaintiffs because, amongst other things, Plaintiffs do not intend to use Monsanto’s transgenic seed, any seed possessed by Plaintiffs that may be contaminated by Monsanto’s transgenic seed is not covered by any valid and properly construed claim of any patent in suit, and Monsanto’s patents rights in transgenic seed exhaust upon the authorized distribution by Monsanto to its customers. Monsanto’s patents are also unenforceable because, among other things, Monsanto has committed misuse, Monsanto is equitably estopped from enforcing them, and Monsanto commits trespass when its transgenic seed contaminates another. Lastly, Monsanto would not be entitled to any remedy under law or equity even if its patents were held to be valid, infringed and enforceable against Plaintiffs, as no economic injury happens to Monsanto and the public interest would not support granting Monsanto an injunction when its patented seed contaminates another.
With the addition of new plaintiffs the lawsuit, Organic Seed Growers and Trade Association (OSGATA), et al. v. Monsanto, filed in March, swells the ranks of the suing organic and conventional voices to 83. Among them are family farmers, organic dairies, food safety advocates, seed companies, agricultural research interests and environmental organizations representing hundreds of thousands of members, including several thousand certified organic, biodynamic, or otherwise non-transgenic family farmers who do not want their farms contaminated by genetically modified seeds. Well-known organizations in this lawsuit include the Center for Food Safety, Beyond Pesticides, Navdanya International (founded by renowned activist, Dr. Vandana Shiva), Organic Seed Growers and Trade Association, The Cornucopia Institute, various chapters of the NorthEast Organic Farming Associations, several Canadian organizations, Food Democracy Now!, the Weston A. Pride Foundation, and many others.
The legal coalition spanning the entire United States, from Maine to California, Ohio to Oregon, stands united against the giant Monsanto, which has recently hired former Solicitor General Seth P. Waxman, now a partner in the Washington, D.C. office of WilmerHale, to respond to the allegations in the complaint.
For years many have decried the controlling influence over seeds and ultimately our food that is exercised with deliberate precision by Monsanto. As noted by Bill Freese, the Science Policy Analyst at the Center For Food Safety, Monsanto is the biggest seed company in the world controlling 23% of the entire proprietary seed supply and wielding an even greater influence because the company licenses its biotech traits (especially Roundup Ready) to other seed firms. DuPont-Pioneer, Bayer and the others pay Monsanto a license fee to allow them to put the Roundup Ready trait in the seeds they and their subsidiaries sell. In the United States, Monsanto’s control of the seed market is so great that over 85-90% of all soybeans, corn, cotton, sugar beets and canola grown contains Monsanto’s patented genes. And while this monopoly-like ownership has only recently caught the attention of the Department of Justice, whose investigation is still on-going, others, like Dr. Vandava Shiva, have been ringing the alarm bell for years. Dr. Shiva said recently: “The seed is not an invention… Patents are given for an invention. Therefore, there should be no patents on seeds.”
Prior to amending the original complaint, plaintiffs’ attorney and the Executive Director of the Public Patent Foundation, Daniel B. Ravicher, suggested in a letter to the company’s lawyer that Monsanto make its public statement that the company would not assert its patents against farmers who suffer “trace” amounts of transgenic contamination, legally binding. Monsanto responded only by reiterating its public statement. “Monsanto’s utter failure to act reasonably to address our concerns has only reaffirmed the need for our lawsuit,” commented one of the lead plaintiffs.