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Update. Organic Family Farmers Defend Their Right to Protect Themselves From Monsanto Patents.

NEW YORK – August 11, 2011 – The eighty-three family farmers, small and family owned seed businesses, and agricultural organizations challenging Monsanto’s patents on genetically modified seed filed papers in federal court today defending their right to seek legal protection from the threat of being sued by Monsanto for patent infringement should they ever become contaminated by Monsanto’s genetically modified seed.  The Public Patent Foundation (PUBPAT) represents the plaintiffs in the suit, titled Organic Seed Growers & Trade Association (OSGATA), et al. v. Monsanto and pending in the Southern District of New York.  Today’s filings respond to a motion filed by Monsanto in mid-July to have the case dismissed…

“Rather than give a straight forward answer on whether they would sue our clients for patent infringement if they are ever contaminated by Monsanto’s transgenic seed, Monsanto has instead chosen to try to deny our clients the right to receive legal protection from the courts,” said Dan Ravicher, PUBPAT’s Executive Director.  “Today’s filings include sworn statements by several of the plaintiffs themselves explaining to the court how the risk of contamination by transgenic seed is real and why they cannot trust Monsanto to not use an occurrence of contamination as a basis to accuse them of patent infringement.”

The legal brief filed by our lawyer asserts, “This case is about real farmers and real seed businesses who wish to use and distribute organic and conventional seed, but who are at substantial immediate risk of being contaminated by Monsanto’s transgenic seed and then sued by Monsanto for patent infringement. It is no mere policy disagreement seeking an advisory opinion on hypothetical facts. Monsanto has undertaken one of the most aggressive patent assertion campaigns in history, including asserting its patents on transgenic seed against parties who, like Plaintiffs, never wanted to use or distribute such seed. As a result, each of the Plaintiffs is under constant fear of being contaminated by Monsanto’s transgenic seed and then sued by Monsanto for patent infringement. This fear is so severe for some of the Plaintiffs that they are completely forgoing growing certain crops that they easily could grow and would like to grow…      

     “Viewing all the circumstances in this case in the light of the purpose of the Declaratory Judgment Act shows that Plaintiffs indeed have standing and that Defendants’ motion lacks merit. Monsanto could easily make this case disappear by providing Plaintiffs a simple covenant not to sue. It would take no more than a single sentence on a single piece of paper and a single stroke of the pen. Monsanto’s failure to do so speaks louder than any stack of papers ever could. As such, Plaintiffs respectfully request that Monsanto’s motion be denied.”

      Plaintiffs Bryce Stephens, who farms in Kansas, Frederick Kirschenmann, who farms in North Dakota, C.R. Lawn, who is founder and co-owner of Fedco Seeds in Maine, Don Patterson of Virginia, and Chuck Noble, who farms in South Dakota, each submitted declarations to the court describing their personal experiences with the risk of contamination by genetically modified seed and why those experiences have forced them to bring the current suit asking the court to declare that Monsanto could never sue them for patent infringement if they were ever contaminated by Monsanto’s GMO seed.  As summarized by the accompanying brief filed by PUBPAT on the plaintiffs’ behalf, “Monsanto’s acts of widespread patent assertion and plaintiffs’ ever growing risk of contamination create a real, immediate and substantial dispute between them.”

      Twelve agricultural organizations also filed a friend-of-the-court amici brief supporting the right of the plaintiffs to bring the case.  In their brief, the amici describe some of the harmful effects of genetically modified seed and how easily GMOs can contaminate an organic or conventional farmer’s land.  The organizations filing the amici brief were Farm and Ranch Freedom Alliance, Biodynamic Farming and Gardening Association, Carolina Farm Stewardship Association, Ecological Farmers of Ontario, Fair Food Matters, International Organic Inspectors Association, Michigan Land Trustees, Natural Environment Ecological Management, Nebraska Sustainable Agriculture Society, Organic Council of Ontario, Slow Food USA, and Virginia Independent Consumers and Farmers Association.

     The excellent and powerful amicii brief begins, “This case presents several issues of first impression, and the outcome will have repercussions for almost every American. While the Plaintiffs are at the most immediate risk of
suit for patent infringement by Monsanto, the legal principles involved in this Court’s decision will have even broader ramifications…. And, ultimately, almost every American consumer somehow makes use of products made from corn, soybeans, canola, sugar beets, or cotton, all of which may implicate the scope and enforceability of Monsanto’s patents. The entire food chain is impacted by the spread of Monsanto’s patented crops….

     “Given the difficulties in minimizing GM contamination, farmers must make numerous decisions about which steps are worthwhile for them and which steps are not. They are not able to make these decisions based on their own and their customers’ interests, but must instead make these decisions with the threat of litigation against a giant corporation looming over their heads. The constant threat of a patent infringement suit by Monsanto creates significant, unquantifiable costs for the Plaintiff farmers and similarly situated farmers. Unless this Court allows this case to proceed, the Plaintiff farmers will face the choice of abandoning growing such crops or risking prosecution whenever Monsanto chooses.

     Monsanto’s motion to dismiss notes that its patented technology is self-replicating… Yet Monsanto wants the court to ignore the real-world repercussions of this fact. Monsanto seeks to reap all of the benefits of a patented seed particularly the necessity for farmers to buy their products year after year indefinitely, since new seed is needed every single year but to take no responsibility for the reality that its technology, by its very nature, induces others to infringe…

     This problem is of Monsanto’s making. By developing a product that is self-replicating, and then marketing it to farmers across the country, Monsanto has ensured that no farmer can entirely avoid infringing. Monsanto has chosen to exploit this problem by an aggressive pattern of enforcement that has left farmers across the country in fear of an enforcement lawsuit even if they have no desire or intent to use the patented seeds. These farmers are placed in the position of abandoning growing valuable crops or investing significant time and effort in protective measures to try to minimize contamination. In the latter case, no matter what measures they take, the farmers still face the threat of a patent infringement lawsuit because of the impossibility of remaining completely GM-free. It is critical for both these farmers and for all the parties involved in the food chain, including the Amici, that this Court consider this case and provide a clear declaration of their rights.” 

Jim is President of lead plaintiff Organic Seed Growers and Trade Association. Bryce Stephens is OSGATA Vice-President and Fedco Seeds is one of our OSGATA member companies. We have studied Monsanto’s litigation playbook and accordingly, their action which seeks to deny us our day in court comes as little surprise.  It is anticipated that the judge will rule on Monsanto’s motion to dismiss in September and we will certainly continue to keep you and the organic community informed about this monumental case.  Jim & Megan

The brief filed by the plaintiffs in opposition to Monsanto’s motion to dismiss is available here.

The amici brief filed in support of the plaintiffs is available here