WASHINGTON, Jan. 10, 2013- The Organic Seed Growers and Trade Association (OSGATA) led an appeal of their dismissed case against Monsanto in Washington, DC today, in which they ask that the seed company guarantee protection from patent infringement for non-GMO farmers.
Attorney Dan Ravicher of the Public Patent Foundation, representing OSGATA and several other plaintiffs, maintained that the district court “erred when it denied the organic seed plaintiffs the right to seek protection from Monsanto's patents.”
However, Circuit Judge Kimberly Moore, one of three justices on the panel, asserted during the plaintiffs’ oral arguments today that, “We’re a court. It’s not our job to issue insurance policies.”
The arguments took place while an anti-Monsanto rally assembled outside the courthouse in Lafayette Square, where approximately 100 supporters brandished signs reading “Stand against Monsanto” and “Oh no GMO.” The crowd was smaller than anticipated, but included some farmers who attended the appeal as well as anti-GMO enthusiasts. Food Democracy Now organized the event.
In Feb. 2012, a New York district court judge dismissed the OSGATA et al v. Monsanto case, a lawsuit originally filed in March 2011 by a group of 83 Plaintiffs. The organic and conventional growers sought preemptive court protection for non-GMO farmers when patented Monsanto seed drifts into and “contaminates” their crop.
According to OSGATA, “Many farmers have been forced to stop growing certain crops to avoid genetic contamination and potential lawsuits from Monsanto.”
Ravicher asked Monsanto for a binding legal covenant guaranteeing farmers that they would not be pursued for patent infringement should Monsanto seed “contaminate” their crop. “The concern is that a trace amount leads to more than a trace,” said Ravicher today. “There’s no rule that says if our crop is contaminated in trace amounts they couldn’t sue us.”
Although the plaintiff argued that the district court’s refusal to recognize his clients’ standing under the Declaratory Judgment Act was erroneous, Monsanto’s attorney, Seth Waxman, argued the judge made a correct decision because they had not shown a “real risk of enforcement action.”
“We don’t have an obligation to give a covenant absent showing a controversy,” Waxman continued. “There is no objective basis of concern by any of these people that Monsanto is going to sue them.”
Monsanto’s policy, which each attorney referred to several times today, states, “It has never been, nor will it be Monsanto policy to exercise its patent rights where trace amounts of our patented seed or traits are present in farmer's fields as a result of inadvertent means.”
Monsanto filed 144 lawsuits settled another 700 out of court between 1997 and 2010, according to OSGATA. Although Judge Moore noted that the number of lawsuits per patent seemed “pretty litigious,” Waxman said today that not one of the suits was filed against an organic farmer or “any conventional farmer not seeking to take advantage of the technology without paying the license fee.”
The plaintiffs assert that an anonymous website policy does not give sufficient assurance for their farmers. “Your policy is not more binding than what you actually did,” said Ravicher today. “Monsanto filed suits against some farmers who were contaminated.”
However, Circuit Judge Timothy Dyk reiterated multiple times during the oral argument that there is no “clear example” of Monsanto suing a farmer simply due to a trace amount of their technology in an intended non-GMO crop.
“Their burden is to show threatened enforcement activity,” argued Waxman. “They haven’t shown that.”
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