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Patent Over Property Rights: Organic farming threatened by cross-pollination from patented seeds

OSGATA appeals to preemptively protect organic farmers from reasonable apprehension of Monsanto enforcing patent infringement of trace elements of cross pollinated GMO genes.

Currently, farmers are liable for knowingly profiting from any cross-pollination of Monsanto’s GMO patented seeds.[1]  The Organic Seed Growers And Trade Association (OSGATA) is preemptively suing to protect its organic farmers from potential patent infringement of all of Monsanto’s invasive genetically modified organisms (GMO).[2]  First, however, OSGATA must establish a controversy for standing before they can address the organic farmer’s rights to plant organic seeds and use their property without fear of potential litigation from cross-pollination of any of Monsanto’s patented GMO crops.[3]  This case may test the boundaries of patent rights and property rights, as the unintentional natural phenomenon of cross-pollination infringes on both farmers’ and patent holders’ rights.

This case may test the boundaries of patent rights and property rights, as the unintentional natural phenomenon of cross-pollination infringes on both farmers and patent holder’s rights.
In Organic Seed Growers & Trade Ass’n. v. Monsanto Co., 851 F.Supp. 2D 544, 547 (S.D.N.Y. 2012), OSGATA and its organic farmer seed clientele are preemptively suing Monsanto, the dominant non-organic seed distributor and patent holder of pesticide resistant crops, so that Monsanto cannot bring a patent infringement suit against organic farmers in the event that Monsanto’s GMOs contaminate organic crops.[4]  Primarily, OSGATA is seeking declaratory relief to secure organic farmers’ rights to not be contaminated by GMOs or, alternatively, to make it Monsanto’s duty to prevent cross-pollination of its patented crops.[5]  However, OSGATA’s suit fails to claim a specific factual controversy, which the trial court determined was insufficient for standing.[6]

On appeal, Monsanto again alleged that OSGATA has no basis for standing without alleging a specific, rather than hypothetical, imminent injury.[7]  Under Article III of the Constitution, a party must at least have a reasonable apprehension of litigation, or a specific factual controversy.[8]  In fact, Monsanto initially responded to OSGATA’s suit by posting a statement on their website stating that they limit their patent litigation to farmers who profit from crops containing more than mere trace amounts of Monsanto’s GMO genes.[9]  OSGATA argues that this promise is illusory, because the statement has no binding effect and Monsanto’s management retains the right to litigate as it determines.[10]  Through its questions, the appellate court  ultimately established that Monsanto would not likely sue for under 50% contamination of a farmer’s crop,[11] and that Monsanto is relatively litigious when compared with other patent holders.[12]

Nevertheless, because OSGATA’s claims involve all of Monsanto’s GMO patents generally and allege harm to all organic farmers, OSGATA’s suit likely does not establish the specific harm required for standing.[13]  So, OSGATA may establish that Monsanto’s policy represents a reasonable apprehension of litigation, yet is not likely to present a specific harm for a triable controversy within standing.

OSGATA may circumvent the standing requirement with the ripeness exception. Pursuant to the ripeness exception, a party need not prove specific harm to establish standing if they can show that delayed review would cause the plaintiff hardship, judicial intervention inappropriately interferes with administrative acts, and the courts would not benefit from further factual development.[14]  Here, if OSGATA can establish that organic farmers must either abandon their rights to farm organically or else risk prosecution by Monsanto for cross-pollination, standing will no longer be an impediment due to hardship.  If OSGATA can show that organic farmers will suffer any hardship of presenting facts that would expose their organic clientele, then they may obtain standing’s ripeness exception.[15]  OSGATA claims that they have many farmers with more than trace amounts of GMO contaminated seeds, yet cannot reveal any facts due to the attorney-client privilege demands.[16]  This hardship in presenting factual cross-pollination may establish that this case is ripe to be heard, despite an otherwise absence of standing.

Previously, Monsanto has established that farmers are liable for knowingly profiting from any cross-pollination of their crops.[17]  By showing that conventional farmers had sprayed Monsanto’s RoundUp® on their entire crop, Monsanto proved that they must have known that their seeds were GMO.  Thus, by profiting from increased yields without purchasing the necessary patented seed, those farmers exposed themselves to liability.[18]  The fact that RoundUp® kills all plants, except Monsanto’s patented crops, met the actual knowledge of infringement and established the intent of the farmers to benefit from the patent.[19]

Smithkline‘s hypothetical demonstrates a real fear of abusive dominance of the seed market by a litigious patent holder improperly enforcing its patent as the result of natural cross pollination.
Organic farmers, on the other hand, will be harmed from cross-pollination of GMO genes rather than profiting.  The organic farmers will not want to use any RoundUp® or any crops containing trace GMO genes over 0.9%, as it would invalidate their organic license.[20]  Therefore, organic farmers will have actual knowledge of a patented GMO genes invading their property, yet lack the intent to take advantage of the patent with non-organic RoundUp®.  So, Monsanto likely cannot prove organic farmer’s intent to profit from their patent or patent infringement in any future case.  Meanwhile Monsanto would then contradict its current claims, which would force courts to question the enforcement of patent infringement from unwanted cross-pollination.

OSGATA’s current case mirrors a hypothetical discussed in the Federal Circuit which described a legitimate reason for limiting patent enforcement.  The hypothetical found in the concurring opinion in Smithkline Beecham Corp. v Apotek Corp., argued that it would be incorrect for the courts to enforce a company’s blue corn patent, which dominated the seed market, and inevitably cross pollinates the neighboring farmers’ corn because it would make every non-blue corn farmer an unwitting infringer.[21]  Smithkline‘s hypothetical demonstrates a real fear of abusive dominance of the seed market by a litigious patent holder improperly enforcing its patent as the result of natural cross-pollination.  Just as in the hypothetical, Monsanto has 90% of the seed market and has litigiously enforced their corn patents obtained by cross-pollination.[22]  The courts may follow this dicta to return the duty to prevent cross-pollination to Monsanto, rather than the farmers, which would settle this case and require Monsanto to respect organic farmer’s property rights and their right to organic seeds without GMO genes.

OSGATA’s bold preemptive suit may force Monsanto to rethink its litigatory dominance over the seed market, yet OSGATA is unlikely to gain standing absent ripeness.  Still, this case may force the courts to incorporate Smithkline‘s hypothetical into binding law on cross-pollination of a patented crop.  Do patent rights on the natural phenomenon of cross-pollination correctly extend to contaminating another’s physical property and livelihood?  Is this duty to stop cross-pollination really up to the farmer or do naturally reproducing patents require a different enforcement standard?  The courts will face these interesting questions in the coming months.

 


[1] Monsanto Co. v. Geertson Seed Farm, 130 S.Ct. 2743, 2755 (2010).

[2] OSGATA et al. v. Monsanto, Organic Seed Growers and trade Association (last visited February 21 at 11:00 A.M.), http://www.osgata.org/osgata-et-al-v-monsanto/.

[3] “The jurisdiction of courts to issue judgments is limited by the justiciability of “cases” or “controversies” under Article III of the Constitution.” Id. at 550

[4]  OSGATA et al. v. Monsanto, Organic Seed Growers and trade Association (last visited February 21 at 11:00 A.M.), http://www.osgata.org/osgata-et-al-v-monsanto/.

[5] Id.

[6] Id.

[7] “They haven’t established, as the district court found, their complaint, and their amended complaint, does not establish a substantial real and immediate Article 3 controversy independent of the exchange of letters”.  Transcript of Oral Argument, OSGATA et al. v. Monsanto Co., (Fed. Cir. 2013) (No. 2012-1298), available at http://www.osgata.org/2013/full-transcript-of-oral-arguments/ argument.

[8] U.S. CONST. art. III, § 2, cl. 1

[9] ”Monsanto has said that it has no intention of bringing enforcement litigation against farmers that don’t wish to take advantage of its patented technology.” Id.

[10] “The statement on Monsanto’s website is based on both and as Mr. Ravicher points out it that statement is not an enforceable commitment. But it is an attempt to assure farmers that if they don’t intend to take advantage of Monsanto’s patented technology they are not going to be sued. The reason it doesn’t have only one rather than the other is, you know, intent always can be disputed.” Id.

[11] “Monsanto has said that it has no intention of bringing enforcement litigation against farmers that don’t wish to take advantage of its patented technology.” Id. Judge Bryson: “So the farmer says: “Look, I don’t care whether the things blowing onto my land is covered by a patent or not. I’m going to continue to harvest my crop and use the seed and if it turns out that 60% of it is Monsanto patent-covered I don’t care. I’m going to continue to plant it.” If it ends up that 60% of the seed, or 90% of the seed, is contaminated will you sue somebody under those circumstances?” Id.

[12] “I think ten lawsuits per patent is pretty litigious.” Id.

[13] “The justiciability problem that arises, when the party seeking declaratory relief is himself preventing the complained-of injury from occurring, can be described in terms of standing (whether plaintiff is threatened with “imminent” injury in fact “ ‘fairly … trace[able] to the challenged action of the defendant” Lujan v. Defenders of Wildlife, 504 U.S. 550, 560 (2007).

[14] Ohio Forestry Assn. v. Sierra Club, 523 U.S. 727, 733 (1998).

[15] U.S. CONST. art. III, § 2, cl. 1

[16]   “[O]ne thing I heard very interesting that you tease out – and let me just say your hypothetical is not hypothetical. It is real. We have clients not involved in this case who have been contaminated to an extent that we believe is beyond trace.” (Fed. Cir. 2013) (No. 2012-1298)

[17] See Monsanto Co. v. Geertson Seed Farm, 130 S.Ct. 2743, 2755 (2010).

[18] “That is technology that makes these plants impervious to the effects of the herbicide RoundUp. The cases that Monsanto brings are cases in which it has come to learn that the farmer is not purchasing any RoundUp Ready seed but is spraying his fields with RoundUp on top and the plants are surviving. This is pretty straightforward. In the RoundUp Ready case, if the farmer were not spraying glyphosate over the top of his fields, by definition he wouldn’t be taking advantage of Monsanto’s technology. Monsanto wouldn’t even know that there was ‘contamination,’ if there was any contamination.”  OSGATA et al. v. Monsanto Co., (Fed. Cir. 2013) (No. 2012-1298)

[19]   What we are talking about here is RoundUp Ready technology. That is technology that makes these plants impervious to the effects of the herbicide RoundUp. The cases that Monsanto brings are cases in which it has come to learn that the farmer is not purchasing any RoundUp Ready seed but is spraying his fields with RoundUp on top and the plants are surviving. Id.

[20] “Well the best basis for trace amounts would be the NOP standards – the National Organic Program standards – which I believe set the level at 0.9%.” OSGATA et al. v. Monsanto Co., (Fed. Cir. 2013) (No. 2012-1298)

[21] “Consider, for example, what might happen if the wind blew fertile, genetically modified blue corn protected by a patent, from the field of a single farmer into neighboring cornfields. The harvest from those fields would soon contain at least some patented blue corn mixed in with the traditional public domain yellow corn-thereby infringing the patent. The wind would continue to blow, and the patented crops would spread throughout the continent, thereby turning most (if not all) North American corn farmers into unintentional, yet inevitable, infringers.7 The implication-that the patent owner would be entitled to collect royalties from every farmer whose cornfields contained even a few patented blue stalks-cannot possibly be correct. The underlying question that engaged the district court, and that led it to develop numerous alternative holdings, is why this implication is incorrect.” Smithkline Beecham Corp. v. Apotek Corp., 403 F.3d 1331, 1361 (Fed. Cir. 2001).

[22] “Monsanto seed has over 90% market share in these affected crops” OSGATA et al. v. Monsanto Co., (Fed. Cir. 2013) (No. 2012-1298)