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This past spring a lawsuit was filed against Monsanto, preemptively seeking legal relief from the strong-arm tactics for which the firm has become famous.
The suit, filed March 29, 2011, in United States District Court, Southern District of New York, in Manhattan, seeks a declaratory judgment against Monsanto. If granted, the judgment will prohibit Monsanto from suing for patent infringement in the event that its patented genes, such as the glyphosate tolerance gene, should turn up in seeds or plants grown by organic or heirloom farmers. A number of seed companies, including Fedco Seeds, Southern Exposure Seed Exchange, Comstock, Ferre Seed Co., and Baker Creek Heirloom Seed Co. joined with organic trade associations, other companies, and dozens of individual farmers in filing suit against the gene-splitting giant, Monsanto Corporation.
The suit alleges that Monsanto’s aggressive tactics have, in the past, resulted in undue hardships on small operations who inadvertently experienced contamination from GMO crops, especially those containing the glyphosate tolerance gene (commonly known as the “Roundup-ready” gene) as exemplified in the well-known Percy Schmeiser case. In that case, Schmeiser, a canola farmer, was accused of patent infringement because Monsanto-owned genes turned up in his fields, in the absence of any license from Monsanto.
The suit was filed by the Public Patent foundation, or PUBPAT, a New York-based legal firm specializing in aspects of patent law pertaining to the public’s interest in such regulation. In a press release, PUBPAT said, “The organic plaintiffs were forced to sue preemptively to protect themselves from being accused of patent infringement should their crops ever become contaminated by Monsanto’s genetically modified seed.” If the plaintiffs prevail, future situations like the Schmeiser case would not happen, at least in the United States, as Monsanto wouldn’t have grounds to sue when the intention of the farmer was to raise GMO-free crops. (The Schmeiser case happened in Canada; this ruling would affect only American farms.)
PUBPAT cited four grounds for the suit, any one of which, if proven, should be sufficient to cause the court to issue the declaratory judgment:
1.) Monsanto’s patents are invalid
By law, patents must be new, non-obvious and useful. The suit asserts that not only are GMO’s not useful, but they may actually be harmful to public health, the environment and society as a whole. Moreover, they are obvious since they derive from gene sequencing. The complaint cites a number of studies and cases to support this claim.
2.) Monsanto’s patents are not infringed
Since there is no intention on the part of contaminated farmers to infringe patents, there can be no patent infringement. Instead, contamination is in fact a trespass, causing damage to the affected farmers. The complaint contends that it is “perverse” that farmers whose crops have been contaminated should also be subject to litigation for patent infringement.
3.) Monsanto’s patents are not enforceable
If both previous arguments fail and patents are still admitted by the judge as being valid and infringed, PUBPAT intends to demonstrate that they are not enforceable because they are being misused to gain undue control over the market.
4.) Monsanto is not entitled to any remedy
Since the farmers in the group are seeking to produce only GMO-free crops, and GMO contamination destroys the value of such crops, Monsanto has not lost revenue due solely to the production of the contaminated crops. Consequently, it is not entitled to damages. To be successful, the plaintiffs need only successfully prove any one of the four bases for the suit. Monsanto, on the other hand, must successfully refute all four of the claims to prove its case.
By Randel A. Agrella
National Woman's Party