Monsanto, Patents and Seeds - Part 3

From Wikimedia Commons

It's a Lazy Sunday afternoon. The kid is napping after I caved and gave him the "chupón". And since the Chroni-what!-cles of Narnia isn't playing, it's a perfect time to research patents and lawsuits! YAY!

This is the last post in this series. Previously, I covered agreements between Ag companies and farmers, as well as Terminator gene technology. I also wrote about what is arguably the most famous lawsuit that Monsanto has brought against a farmer (Monsanto vs Schmeiser). Throughout this whole time, I've been investigating the claim that Monsanto sues farmers whose fields get inadvertently contaminated with its seeds.

In my search for a case that Monsanto may have unfairly brought to a farmer, I came across a story that I think seals the deal on this whole question. In a court case from 2013, known as OSGATA vs Monsanto, a coalition of organic farmers, seed distributors and anti-GMO organizations tried to invalidate 23 of Monsanto's patents. The case's background states that these groups do not want to use/sell transgenic seeds or glyphosate. However, their concern is that if they do become contaminated "they could quite perversely also be accused of patent infringement by the company responsible for the transgenic seed that contaminates them".

The intro to the court document explains that in 2011, Organic seed growers went before a judge in the Southern District of New York stating that they had started growing conventional produce since the threat of contamination from GMO was so high. They had to take expensive precautions such as creating a buffer zone, so that they wouldn't be sued by Monsanto. One grower testified to the fact that the only reason why he grows conventional seeds is the threat of a lawsuit from Monsanto, and if this threat didn't exist then he would go back to growing organic seeds. So, these growers requested Monsanto to “expressly waive any claim for patent infringement [Monsanto] may ever have against [appellants] and memorialize that waiver by providing a written covenant not to sue." The main issue was the fact that Monsanto's promise to never sue a farmer whose fields have been (unknowingly) contaminated by their seeds was a statement on their website. It wasn't a law. It wasn't something that they had sworn to under oath. It was just something on their webpage which, at the end of the day, could be false advertising or a PR gimmick. In back-and-forths between lawyers, Monsanto wrote that they have no reason to go after farmers for low level contamination because there's no financial incentive, and that if the motives of the growers/farmers is true (i.e. that they don't intend to use/sell transgenic seeds), then their fear of a lawsuit is unreasonable. The judge threw out the case based on the fact that "these circumstances do not amount to a substantial controversy and . . . there has been no injury traceable to defendants". All this was just in the 2011 district court case.

The case then goes to the United States Court of Appeals for the Federal Circuit, whose court documents are the ones I'm summarizing. The discussion states that “jurisdiction generally will not arise merely on the basis that a party learns of the existence of a patent owned by another or even perceives such a patent to pose a risk of infringement.” It goes on to state that the appellants have to demonstrate that there's a substantial risk that harm may occur or that they have to go through expenses/costs to mitigate those risks.

Now, here's what blows my mind: the Organic growers/seed distributors (OSGATA) concede that Monsanto has never threatened to sue them. OSGATA states that their fear is based on the fact that Monsanto has taken 144 growers/sellers to court and settled 700 additional cases out of court. Monsanto argues that none of these cases have been due to inadvertent contamination.

So OSGATA was not able to demonstrate that Monsanto had ever sued due to the inadvertent use of their seeds. Kuh. Ray. Zee.

However, the court conceded that the way patent laws are written, that using even a small amount of a patented material without authorization could constitute patent infringement. For the purposes of the appeal, the judge proceeded with the ruling based on the assumption that inadvertent contamination constitutes patent infringement, and that inadvertent contamination was inevitable (Monsanto also acknowledged that cross-contamination was a possibility).

The record states that this whole argument is moot if Monsanto really doesn't intend to sue. Apparently, the Supreme Court has recognized that a covenant not to sue nullifies a controversy between parties. Monsanto has a written policy on their website against inadvertent contamination and the court documents record Monsanto's position on this whole argument. Monsanto and the organic growers agree that "trace amounts" means approximately 1% contamination. The ruling states that although this is not a covenant not to sue, it has a similar effect and constitutes a judicial estoppel (I had to look this one up on Wikipedia. It means that you can't contradict something that's been established as truth by yourself or others).

OSGATA stated that Monsanto's refusal to provide a covenant had a "chilling effect" and that farmers/growers would have to forgo the activities that they would have otherwise liked to pursue. The judge stated that a "chilling effect" isn't something tangible, that the appellants need to have something more specific than that, and that the future harm described is speculative and hypothetical.

The court ruling ends with this statement in the concluding paragraph: "the appellants have alleged no concrete plans or activities to use or sell greater than trace amounts of modified seed, and accordingly fail to show any risk of suit on that basis. The appellants therefore lack an essential element of standing."

The organic movement considered this case to be a partial victory because they now had in writing that Monsanto would never sue them for inadvertent contamination. But I'm not sure I understand this... I think you'd have to be so paranoid about what Monsanto might do that you'd be willing to incur massive legal fees to make sure that a hypothetical never happens, even when you can't produce proof that it might.

So how is it that this myth about Monsanto suing farmers still circulates? Based on the 30 minutes that I saw from the movie "David vs Monsanto", you could believe that Monsanto plants evidence and works with testing companies to ensure that you your testing is >1%. You could believe that the 700 court cases that were settled out of court were against farmers who were inadvertently contaminated, but just didn't have the money to fight Monsanto in court. You could believe that all the court cases had judges and witnesses who were paid off by Monsanto. You could also believe that Monsanto is really a modern mafia who will break your kneecaps if you don't buy their seeds.

My perspective on this is that Monsanto is a huge company that has better things to do than to sue the small farmer who inadvertently uses their seeds. Think about the negative publicity that it would mean for them. From a practical perspective, it would probably represent a greater expense to them in legal fees than what they would recoup through the settlement or court case. From a paranoid perspective, they're too busy collecting the teardrops from orphaned field-working toddlers for use in the GMO creation process.

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Edited on Nov 6th, 2015 to clarify that the OSGATA case was considered a partial victory by organic food advocates, not a complete victory. See comments.