In mid-July, Monsanto filed a motion with the Federal court in New York to have the Organic Seed Growers & Trade Association (OSGATA), et al., case dismissed against it. Monsanto’s motion was in response to a complaint filed earlier this year by eighty-three family farmers, small and family owned seed businesses, and agricultural organizations challenging Monsanto’s patents on genetically modified seeds. The complaint also asked the court to declare that Monsanto cannot sue plaintiffs should the company’s transgenic seed land on their property.
Plaintiffs include thirty-three family farms and individual farmers from throughout the United States, fourteen seed businesses and thirty-six agricultural membership organizations. According to the accompanying brief filed by PUBPAT in opposition to Monsanto’s motion to dismiss, filed on August 11, 2011, each plaintiff strives to farm and/or do business without the use of transgenic seed, but is nonetheless fearful that either the fields or the seed products each sells could become contaminated by Monsanto’s transgenic seed and then be accused by Monsanto of patent infringement. It has happened before.
The fear of a lawsuit, argued PUBPAT on behalf of plaintiffs, “arises from the highly contaminating nature of Monsanto’s transgenic seed and Monsanto’s well known aggressive patent assertion tactics. This fear is so strong that it causes some plaintiffs to forgo growing crops that they otherwise have the capacity and desire to grow.” In fact, according to the amended complaint filed by plaintiffs, Monsanto is said to have investigated roughly 500 farmers per year for patent infringement and between 1997 and April 2010, it filed 144 lawsuits against farmers in 27 different states for infringement of or breach of license to its transgenic seed patents.
In its August court filing, PUBPAT further explains the plaintiffs’ concerns as follows:
Over the past 30 years, Monsanto has extinguished the majority of independent seed companies in the course of growing its transgenic seed business. Monsanto didn’t just patent transgenic seed; it embarked on a mission to destroy non-transgenic agriculture. Because of its restrictive licensing, aggressive litigation, and old-fashioned bullying, Monsanto is en route to dominating every American field devoted to farming. The release of transgenic seed that is self-propagating results in its patented seed being virtually everywhere, spreading like a virus without containment, disregarding the property lines and personal wishes of farmers and seed businesses who wish to avoid its harmful effects.
Also in response to Monsanto’s motion to dismiss twelve additional agricultural organizations, which include members who feed grain to livestock and poultry, certify organic production of crops, use grains or cotton as raw ingredients for other products, and who consume or use products made from these crops, filed an amici brief, supporting the right of plaintiffs to bring the case. These “friend-of-the-court” filers poignantly noted in their separate brief that:
By its very nature, GM technology contaminates non-GM crops. Efforts by the farmers, undertaken at significant expense and burden, can only minimize contamination, not stop it completely. As the contamination compounds, it is reasonable to ask how long it will take for the farmer to have 10% or 20% contamination in his fields, whether he is saving his own seed or buying increasingly contaminated seed because no commercial company can guarantee 100% non-GM seed. At what point does Monsanto contend that this is no longer “trace” contamination, even though it occurred entirely without the farmer’s knowledge or intent?
While Monsanto argued in its motion to dismiss that it has never sued a certified organic producer for GM contamination, such a statement does not pacify plaintiffs that are conventional farmers who, while are not certified organic, nonetheless implement organic or sustainable practices. Nor can organic farmers feel at ease, argued plaintiffs and friend-of-the-court filers, because “bringing a suit is the final step in a long process that can be used to intimidate and harass farmers, starting with investigations, accusations, harassment, and the threat to file a suit.” Furthermore, argued the friend-of-the-court filers, “Monsanto has not actually committed that it won’t sue certified organic farmers in the future, but merely states that it has not yet done so.”
Other public statements by the company, such as its “commit[ment]” not to sue farmers for “trace” amounts of transgenic seed found in farmers’ fields, argued plaintiffs and the friend-of-the-court filers, are next to meaningless because such statements are “legally unreliable” and “provides no enforceable protection for [p]laintiffs.”
A ruling on Monsanto’s motion is expected in the fall.