Organic growers lose appeal for protection from Monsanto lawsuits

Organically grown corn seeds. Creative Commons photo

Organically grown corn seeds. Creative Commons photo

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.

Hilary Niles

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  • The best result would be for Monsanto to be held liable for any unintentional cross contamination by their products.

  • Their “public assurance that it would not sue farmers should cross-pollination occur” does not address the issue.
    – In 2006 GM rice grown for one year in field trials five years earlier was reported to have contaminated the US rice supply and seed stocks, and found in Africa,
    Europe, and Central America. US rice futures dropped immediately by $150 and exports dropped by about 20% from the previous year. The total cost could reach
    as high as $1.2 billion.

    read more –

  • Farmers, organic or otherwise, shouldn’t have to put with the Monsanto troll police conducting “fishing expeditions” on their property looking for cross contamination. If Monsanto isn’t not going to sue, why inspect? Why are they allowed to trespass in the first place?
    Even the real police can’t make warrantless searches without a court order.

  • kevin lawrence

    For the vast majority of consumers, Monsanto is a silent and anonymous 3rd party. How can I identify Monsanto products at the retail level? Thus, any kind of public response is impossible to coordinate. Boycotting Monsanto to inspire corporate change would work if consumers could get a focus on what products are grown with their GMO’s.
    Labeling gmo’s will make us all smart consumers.

  • Should a person own a living organism which has the potential to cause damage that person has a duty to protect others from that harmful living organism. If damage is caused by that living organism then all the person who is harmed or whose property is harmed need do is prove ownership of the organism. Negligence or intention need not be proved. In the case of patented genes ownership should be easy to prove.

  • Mike Kerin

    Why can’t our organic farmers sue Monsanto if their corn is contaminated?

  • Organic farmers can sue. It is an old Roman Law tort. Actio in forma pauperi. Monsanto can not change the common law. If a bull jumps the fence and gores your child or a cow goes onto the highway and a car crashes into it, that law applies. The injured party has to prove ownership and injury. If patented GMO pollen crosses the fence and contaminates your crops or your field all you have to do is prove injury and ownership.

  • Walter Judge

    Mr. Kerin, where did you come by the notion that organic farmers cannot sue Monsanto if their corn is contaminated by Monsanto GMO corn? The article above, and the case that is the subject of the article, says absolutely nothing of the kind. That’s not what the case was about.

    • krister adams

      Sir: Please explain…”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.” Is this saying Monsanto can sue?

  • Walter Judge

    Monsanto publicly stated — before this suit was even filed — that it has no intention of suing organic farmers whose crops may be inadvertently cross-pollinated by Monsanto’s GMO. That’s why both the lower court and the appeals court dismissed the suit: there was no basis for it, except apparently as an attention-getting vehicle.

    This suit had absolutely, positively nothing to do with whether GMO crops are a good thing or a bad thing.

  • stephen webster

    monsanto has so much money that when a farmer hurt by them, and the farmer takes monsanto court. The farmer can not win because monsanto is protected by our laws

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