The seed company Monsanto successfully defended itself in federal appeals court this month against more than 80 organic seed growers and trade associations.
The group sought broad protection for farmers against potential lawsuits by Monsanto down the road — in the event that their crops are inadvertently cross-pollinated with the company’s patented genetic material.
The farmers said their crops had not yet been contaminated. And Monsanto pointed to its public assurance that it would not sue farmers should cross-pollination occur.
The farmers lost the federal suit in the Southern District of New York in 2012. On June 10, they lost again in the U.S. Court of Appeals for the Federal Circuit. The judgment: Without rational fear that the growers would be sued for patent infringement, they had no reason to seek “declaratory judgment” preventing such a suit in the future.
Vermont Sen. David Zuckerman, P-Chittenden, considers it a partial win.
Zuckerman’s Full Moon Farm in Hinesburg, which he co-owns with his wife Rachel Nevitt, was among the many plaintiffs and appellants in the cases, along with Rural Vermont and the Northeast Organic Farming Association of Vermont. He also is a supporter of the GMO labeling law that passed the House this spring and now awaits consideration by the state Senate next year.
The appeals court cited Monsanto’s own communications and those of the company’s lawyers in ruling that “Monsanto’s representations unequivocally disclaim any intent to sue appellant growers, seed sellers, or organizations for inadvertently using or selling ‘trace amounts’ of genetically modified seeds.”
“So I think that sets up a precedent whereby Monsanto has to be very careful about crossing that threshold,” Zuckerman said.
Monsanto’s lawyer, Seth Waxman of Wilmer Cutler Pickering Hale and Dorr, LLP, of Washington, D.C., doesn’t see that anything has changed.
“I think the litigation was completely unnecessary, particularly in light of the assurance I provided,” Waxman said.
He said the wording on Monsanto’s website, in which the company states its policy is not to litigate for inadvertent cross-pollination, predates the group’s lawsuit “by years.”
Yet after the lawsuit was filed, Waxman said, he received a letter “out of the blue” from the plaintiff’s attorney, Daniel Ravicher of the Public Patent Foundation. The letter requested assurance that the company would never sue any of Ravicher’s plaintiffs, Waxman said.
“I wrote him a letter back saying we have no reason to think that any of your clients are infringing any of our patents, inadvertently or intentionally. And based on your complaint (that any infringement covered by declaratory judgment would be inadvertent), you have no reason to fear,” Waxman said.
The courts agreed.
While there was some question as to what exactly would qualify as a “trace” amount of genetically modified seed — a line of questioning that gave Zuckerman some hope in the prospects for the group’s appeal — the court ultimately decided it didn’t matter.
Intellectual property lawyer Walter Judge Jr., at the Burlington office of Downs Rachlin Martin PLLC, watched the case with interest. He was surprised by the fact that the plaintiffs appealed the district court ruling, which itself was unequivocal in its determination that the plaintiffs had no “standing” (or basis) for the suit.
“What that suggested to me was were these lawyers … really pursuing this because, notwithstanding what Monsanto said, they were still afraid? Or were they using the court system as an attempt to draw publicity?”
Because the case was ruled on the merits of the plaintiffs’ standing, Judge sees little meaning for the larger GMO-related issues that often spark controversy, especially here in Vermont.
“This was not, by any stretch of the imagination, an opinion by any court on the issue of genetically modified seeds,” Judge said.
