A three-judge panel at the Court of Appeals for the Federal Circuit ruled yesterday that a group of organic and otherwise non-genetically modified organism (GMO) farmer and seed company plaintiffs are not entitled to bring a lawsuit to protect themselves from Monsanto's transgenic seed patents "because Monsanto has made binding assurances that it will not 'take legal action against growers whose crops might inadvertently contain traces of Monsanto biotech genes (because, for example, some transgenic seed or pollen blew onto the grower's land).'"
In the ruling issued yesterday in the case Organic Seed Growers and Trade Association (OSGATA) et al. v. Monsanto, the Court of Appeals judges affirmed the Southern District of New York's previous decision that the plaintiffs did not present a sufficient controversy to warrant adjudication by the courts. However, it did so only because Monsanto made repeated commitments during the lawsuit to not sue farmers with "trace amounts" of contamination of crops containing their patented genes.
Plaintiffs' attorney, Dan Ravicher of the Public Patent Foundation (PUBPAT), views the decision as a partial victory. "Before this suit, the Organic Seed plaintiffs were forced to take expensive precautions and avoid full use of their land in order to not be falsely accused of patent infringement by Monsanto," said Ravicher. "The decision today means that the farmers did have the right to bring the suit to protect themselves, but now that Monsanto has bound itself to not suing the plaintiffs, the Court of Appeals believes the suit should not move forward."
The plaintiff farmers and seed companies began their legal battle in March of 2011, when they filed a complaint against agricultural giant Monsanto asking for a declaration that Monsanto's patents on genetically engineered seed were invalid or unenforceable. The plaintiffs were compelled to file the suit because Monsanto's patented seed can contaminate neighboring fields through various means including wind and insects, and the owners of those fields, such as plaintiffs, can then be sued by Monsanto for patent infringement.
The Organic Seed plaintiffs' complaint detailed Monsanto's abusive business and litigation tactics that have put several farmers and independent seed companies out of business. They also detailed Monsanto's history of ruthless patent enforcement, going so far as investigating as many as 500 farmers each year for patent infringement by trespassing onto their land. The plaintiffs further detailed the harms caused to society by Monsanto's GMO seed, including the proliferation of herbicide-resistant "superweeds" and environmental pollution. The plaintiffs set forth in their legal filings how the patents were legally deficient in several ways including that the covered technology has no beneficial social use and that the dozens of patents issued to Monsanto have illegally extended and entrenched its monopoly.
"Even though we're disappointed with the Court's ruling not to hear our case, we're encouraged by the court's determination that Monsanto does not have the right to sue farmers for trace contamination," said Maine organic seed farmer Jim Gerritsen, president of lead plaintiff OSGATA. "However, the farmers went to court seeking justice not only about contamination, but also the larger question of the validity of Monsanto's patents. Justice has not been served."
While the court is relying on Monsanto's promise not to sue farmers for unintentional contamination, a growing number of America's farmers and consumers are concerned about genetic contamination of our food supply by Monsanto's transgenic crops. While this lawsuit seeks to protect contaminated farmers from being accused of infringing Monsanto's patents, the decision today allows farmers who are contaminated to sue Monsanto and Monsanto's customers for the harm caused by that contamination without fear of a retaliation patent infringement claim against them by Monsanto.
"Today's ruling may give farmers a toehold in courts regarding the unwanted contamination of their crops, but it does not protect our food supply from the continued proliferation of Monsanto's flawed technology," said Dave Murphy, founder and executive director of Food Democracy Now!, a co-plaintiff in the lawsuit. "The real threat of continued contamination of our nation's food supply was only highlighted last week when Monsanto's unapproved GMO wheat was discovered in an Oregon farmer's field more than 10 years after it was legally planted in that state."
The discovery of GMO contamination sent shockwaves through the Western wheat growers community and resulted in Japan and South Korea temporarily halting the acceptance of American wheat imports.
Despite the Court of Appeals' Decision today the plaintiffs still have the right to ask the Supreme Court to review the Court of Appeals decision and ultimately reinstate the case. Ravicher said the plaintiffs are considering doing so. Complete background on the full lawsuit is available on the OSGATA website.
Visit EcoWatch’s GENETICALLY ENGINEERED FOODS page for more related news on this topic.
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On Feb. 24, Judge Naomi Buchwald handed down her ruling on a motion to dismiss in the case of Organic Seed Growers and Trade Association et al v. Monsanto after hearing oral argument on Jan. 31 in Federal District Court in Manhattan. Her ruling to dismiss the case brought against Monsanto on behalf of organic farmers, seed growers and agricultural organizations representing farmers and citizens was met with great disappointment by the plaintiffs.
Plaintiff Lead Attorney Daniel Ravicher, said:
“While I have great respect for Judge Buchwald, her decision to deny farmers the right to seek legal protection from one of the world’s foremost patent bullies is gravely disappointing. Her belief that farmers are acting unreasonable when they stop growing certain crops to avoid being sued by Monsanto for patent infringement should their crops become contaminated maligns the intelligence and integrity of those farmers. Her failure to address the purpose of the Declaratory Judgment Act and her characterization of binding Supreme Court precedent that supports the farmers’ standing as ‘wholly inapposite’ constitute legal error. In sum, her opinion is flawed on both the facts and the law. Thankfully, the plaintiffs have the right to appeal to the Court of Appeals, which will review the matter without deference to her findings.”
Monsanto’s history of aggressive investigations and lawsuits brought against farmers in America have been a source of concern for organic and non-GMO farmers since Monsanto’s first lawsuit brought against a farmer in the mid-90′s. Since then, 144 farmers have had lawsuits brought against them by Monsanto for alleged violations of their patented seed technology. Monsanto has brought charges against more than 700 additional farmers who have settled out-of-court rather than face Monsanto’s belligerent litigious actions. Many of these farmers claim to not have had the intention to grow or save seeds that contain Monsanto’s patented genes. Seed drift and pollen drift from genetically engineered crops often contaminate neighboring fields. If Monsanto’s seed technology is found on a farmer’s land without contract, they can be found liable for patent infringement.
“Family farmers need the protection of the court,” said Maine organic seed farmer Jim Gerritsen, president of lead plaintiff OSGATA. "We reject as naïve and undefendable the judge’s assertion that Monsanto’s vague public relations ‘commitment’ should be ‘a source of comfort’ to plaintiffs. The truth is we are under threat and we do not believe Monsanto. The truth is that American farmers and the American people do not believe Monsanto. Family farmers deserve our day in court and this flawed ruling will not deter us from continuing to seek justice.”
The plaintiffs brought this suit against Monsanto to seek judicial protection from such lawsuits and challenge the validity of Monsanto’s patents on seeds.
“As a citizen and property owner, I find the Order by the Federal Court to be obsequious to Monsanto,” said plaintiff organic farmer Bryce Stephens of Kansas. "The careless, inattentive, thoughtless and negligent advertisement Monsanto has published on their website to not exercise its patent rights for inadvertent trace contamination belies the fact that their policy is in reality a presumptuous admission of contamination by their vaunted product on my property, plants, seeds and animals.”
“Seeds are the memory of life,” said Isaura Anduluz of plaintiff Cuatro Puertas and the Arid Crop Seed Cache in New Mexico. "If planted and saved annually, cross pollination ensures the seeds continue to adapt. In the Southwest, selection over many, many generations has resulted in native drought tolerant corn. Now that a patented drought tolerant corn has been released, how do we protect our seeds from contamination and our right to farm?”
A copy of Judge Buchwalds ruling can be found by clicking here.
For more information, click here.
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