In January, the Federal Circuit heard arguments in the OSGATA v Monsanto case. In this suit of national¬†prominence, plaintiff farmers, seed selling businesses and agricultural organizations (Farmers), who do not use or sell transgenic (a.k.a. GMO) seeds,¬†are seeking a judgement from the court protecting them from any claims of patent infringement should they become¬†contaminated by Monsanto‚Äôs transgenic seed.
The Farmers argue that they have no interest in using Monsanto’s seed.¬†Nevertheless, as a result of seed scatter and cross-pollination, and the prominence of GMO seeds in the United States, the Farmers’ seeds can become contaminated. “Due to the¬†substantial prevalence of Monsanto‚Äôs transgenic seed throughout American¬†agriculture today, contamination of [Farmers'] property is inevitable,” they argued in their legal submission on appeal.
Complicating matters is Monsanto’s aggressive policy on patent¬†enforcement¬†even against farmers who had no intention of using GMO seeds. “Monsanto has a well known history of¬†zealously asserting its patents on that seed, through marking, licensing, private¬†investigations, threatening legal action and initiating litigation, including against¬†those who did not intend to possess or use it.”
The entire burden of remaining GMO free falls on the Farmers. They must either perform¬†an expensive genetic test on their seeds or plants, observe the presence of some¬†surviving non-stunted plants in their field, should the field be exposed to glyphosate, or avoid using their land for certain crops like corn or soybean. (For a background on the case see all of our articles on this topic¬†here.)
In what is seen as a David v Goliath legal battle, Farmers, represented by two attorneys, against Monsanto’s six, argued that they:
are not worried about ‚Äúsome day‚ÄĚ having to forgo full use of their land. That day has already come. Likewise, [Farmers] are not worried about ‚Äúsome day‚ÄĚ having to adopt expensive genetic testing. That day, too, is here.
Can Farmers Proceed With Their Case?
The legal case centers on whether Farmers have standing to bring the suit, which the lower court said “no.” Unlike state courts, U.S. federal courts will only hear specific cases. As a threshold matter, a plaintiff in a federal suit has the burden of demonstrating that it has been injured in fact, that the defendant has¬†caused that injury, and that the injury can be remedied by a decision in its favor.
On appeal, the Farmers argued that the lower court erred in its¬†assessment¬†of whether they met this burden.¬†For one, the Farmers argued, the lower court’s accepted statements made by Monsanto‚Äôs counsel that the company won’t sue rather than the Farmers’ evidence that Monsanto threatening to sue and has sued multiple parties who, like Farmers, did not want to possess or use GMO seed.
The lower court, argued the Farmers, also¬†disregarded “repeated instances of transgenic contamination in seed supplied to Plaintiffs in the course of their normal business operations.”
Farmers’ Friends of The Court Arguments
Two “amici” or friends of the court briefs were filed in support of the Farmers. The first group consists of¬†organisations¬†who feed grain to livestock and poultry, certify organic production of crops, use grains or cotton as raw¬†ingredients¬† and who consume products made from these crops. They argued that “[g]iven the realities of farming, it is all but impossible to farm soy, canola, corn, or cotton in this country without being contaminated at some level with patented transgenic seeds plants. Under the strict liability provisions of patent law, contamination equals infringement, absent intent or even knowledge.” Furthermore,
As time goes on and more transgenic crops dominate the market, crops such as sugar beets and alfalfa will pose the same unavoidable problem. The farmer is left with a choice: risk infringement or refrain from raising these crops at all.
Prominent intellectual property law professors also filed a brief with the Court of Appeals teasing out the legal points of standing and arguing for the reversal of the lower court’s decision.
Monsanto argued that the Farmers have not met the legal requirements to proceed with their case. In fact, Monsanto claimed, they have created “a hypothetical dispute [...] solely to further an anti-biotechnology political agenda,” a recurring theme in the company’s brief.
Monsanto relies heavily on its public statements — which the opponents called a “hollow mantra” — that Monsanto will not sue “growers whose crops might inadvertently contain traces of Monsanto‚Äôs patented traits.” And the company further stated that ¬†“Monsanto has never filed a patent-infringement lawsuit against a USDA-certified organic farm or handling operation for the presence of patented traits in its certified organic operations.” (emphasis added).
But “traces amounts” is not a defined concept and before Monsanto decides if¬†the¬†presence¬†of its patented traits was “inadvertent” presumably the company will have to conduct an investigation. Furthermore, the argument that Monsanto has not sued USDA certified organic farms leaves more questions open than it answers: what about conventional farmers and business who eschew GMOs? what about transitional farms? Then there is¬†also¬†the PR factor: imagine the public reaction if Monsanto sues a certified organic business for patent infringement of its GMO seeds.
Ironically, while accusing Farmers of “manufacturing a judicial dispute” and using the court to advance a political agenda, Monsanto does not miss an opportunity to advance its own cause. As Farmers pointed out in their response to Monsanto’s legal submission:
Monsanto’s brief discusses many issues that have nothing to do with the only question currently before the Court, whether this case presents a controversy appropriate for judicial resolution. It is irrelevant that Monsanto spends billions of dollars on transgenic seed research (Br. 5.), that there are twenty-three patents in suit (Br. 2.)1, that both organic and transgenic industries have grown despite the admitted prevalence of transgenic contamination (Br. 7.), that there is federal regulation of agricultural practices (Br. 8-9.), or that Plaintiffs have a policy disagreement with agricultural biotechnology (Br. 2).
Biotechnology Industry Organization and CropLife America also submitted friends of the court brief in support of Monsanto.