Seventy-five family farmers, seed businesses, and agricultural organizations (Farmers) representing over 300,000 individuals and 4,500 farms have recently submitted their appellate brief to the Court of Appeals for the Federal Circuit challenging the lower court’s dismissal of their case. In the lawsuit, Farmers seek a ruling that Monsanto could never sue them for patent infringement if their property became contaminated by Monsanto’s genetically modified seed.
According to the Farmers’ legal brief, Monsanto investigates roughly 500 farmers per year for patent infringement and has filed over 140 patent infringement lawsuits against farmers that it alleged were purposefully using its seed.
The case was originally filed on March 29, 2011 and was dismissed this February by a District Court in New York. The District Court ruled that it lacked subject matter jurisdiction over the case, meaning that, among other things, Farmers have not demonstrated actual or imminent injury that was “traceable” to Monsanto in order to continue with their case. As a result of this dismissal, the plaintiff farmers, seed businesses and agricultural organizations had no opportunity to argue the merits of their case and now they seek this permission from the Court of Appeals in Washington, DC.
While the case on appeal involves technical issues of patent law interwoven with civil procedure, the Farmer’s brief laconically captures the essence of this legal battle:
This case is about real farmers and real seed businesses who wish to use and distribute organic and conventional seed, but who are at substantial immediate risk of being contaminated by Monsanto’s transgenic seed and then sued by Monsanto for patent infringement. It is no mere policy disagreement. Plaintiffs do not seek an advisory opinion on hypothetical facts and have not brought this case because they are aware of Monsanto’s patents and merely object to them. Plaintiffs have brought this case because they are in a no-win situation; they must either abandon growing certain crops or adopt burdensome genetic testing on the one hand, or put themselves at risk of being contaminated by Monsanto’s transgenic seed and then accused of patent infringement as a result on the other.
The burden of keeping crops, soil and seed businesses from genetic contamination by GMOs is onerous and is shouldered disproportionately by plaintiff farmers, seed businesses and agricultural organizations, not by the maker of those GMO seeds whose products trespass onto and into plaintiffs’ property as the wind blows or trucks drive by. On appeal, Farmers argue that:
Farmers who do not wish to use transgenic seed are at grave risk of doing so unintentionally, because organic and conventional crops are vulnerable to contamination by transgenic seed at almost every step of the production process: before seed is purchased, through seed drift or scatter; through cross-pollination; through commingling via tainted equipment during harvest or post-harvest activities; during processing; during transportation; and during storage.
Adding force to their position, last week 11 prominent intellectual property professors and fourteen agricultural organizations filed briefs with the Court of Appeals arguing that farmers have the right to protect themselves from being accused of patent infringement by agricultural giant Monsanto. The sympathetic organizations have members who feed grain to livestock and poultry, certify organic production of crops, use grains or cotton as raw ingredients for other products, and consume or use products made from these crops. Monsanto, the organizations argued, has “chosen to patent products that, by their very nature, will inevitably end up on the private property of people who have no desire to use them. [...] for the first time in history, [Farmers] can be sued for something as natural as pollen drift, while simultaneously being forced to take expensive and burdensome steps in order to continue their normal businesses.” The full list of law professors and the organization filing their supporting briefs can be found here.
“[T]wo impeccable groups joined with plaintiffs in explaining to the Court of Appeals how real and legitimate their concerns really are, especially since Monsanto continues to refuse to simply promise never to sue contaminated farmers for patent infringement,” stated the Farmers’ attorney, Dan Ravicher, in a press release.
Barring any requests for delay, Monsanto has until early September to file its opposition papers. Within two weeks after Monsanto submits its legal documents, farmers will have an opportunity to respond. The Court of Appeals could take up to six months to schedule the parties’ oral argument and a decision may not come for two to four months thereafter.