A Band of 60 Davids Challenges Monsanto, the Goliath, in Federal Court

According to a Federal lawsuit recently filed by the Public Patent Foundation [www.pubpat.org] in the Southern District of New York on behalf of the Northeast Organic Farming Association/Massachusetts Chapter, Inc. [www.nofamass.org] and 59 other plaintiffs, Monsanto Corporation has bullied farmers who have  resisted its Round-Up Ready Technology [Organic Seed Growers & Trade Association, et al. v. Monsanto, 11 CIV 2163, Judge Naomi Buchwald). According to Daniel Ben Ravicher (University of Virginia Law School, 2001), lead attorney in the case and the Public Patent Foundation’s Executive Director and Lecturer of Law at Cardozo School of Law in New York City, “it seems quite perverse that a farmer contaminated by [transgenic seed] could be accused of patent infringement, but Monsanto has made such accusations before and is notorious for having sued hundreds of farmers for patent infringement, so we had to act to protect the interests of our clients.”

Monsanto, with revenue of $10.5 billion and operating income of $1.6 billion in fiscal year 2010, is a Goliath in the “global proprietary seed market.”  It markets and sells transgenic seed (also known as genetically modified or genetically engineered seed), and according to the legal complaint, Monsanto sells Roundup Ready seed for corn, canola, soybean, sugar beet, alfalfa and cotton.  In the United States, plaintiffs assert that “Monsanto’s control of the seed market is so high that over 85-90% of all soybeans, corn, cotton, sugar beets and canola grown in the U.S. contains Monsanto’s patented genes.”

The plaintiffs are largely organic farmers and organic seed businesses who do not want to use or sell transgenic seed, as well as some non-organic farmers who wish to farm without transgenic seed.  Plaintiffs fear that they could be perversely accused by Monsanto of patent infringement and bring their lawsuit to obtain a declaratory judgment “to protect themselves from ever being accused of infringing patents on transgenic seed.”  They cite a long history of Monsanto aggressively asserting its patents for transgenic seeds against hundreds of farmers, including farmers who became contaminated by Monsanto’s transgenic seed through no fault of their own.  This fear “causes some of the farming plaintiffs to forgo growing certain crops, including corn, cotton, canola, sugar beets, soybeans and alfalfa, since it is widely known that those crops are currently under severe threat of transgenic seed contamination.”

The plaintiffs sketch out in detail the nature of Monsanto’s transgenic seeds and forcefully assert that “Society stands on the precipice of forever being bound to transgenic agriculture and transgenic food.”  Transgenic seeds are genetically engineered through the introduction of foreign genes and regulatory sequences into the seeds’ genome.  Monsanto’s most predominant transgenic trait is “glyphosate tolerance” which makes crops tolerant of Monsanto’s glyphosate-based herbicide called Roundup.  Roundup causes severe injury or destruction when applied to crops that are not glyphosate tolerant.

Plaintiffs claim that coexistence between transgenic seed and organic seed is impossible because transgenic seed contaminates and eventually overcomes organic seed.  Organic canola has become virtually extinct as a result of transgenic seed contamination according to the complaint, and organic corn, soybean, cotton, sugar beet, and alfalfa face the same fate “as transgenic seed has been released by Monsanto for each of those crops.”

In support of their pursuit of a declaratory judgment that “should they ever be contaminated by Monsanto’s transgenic seed, they need not fear being sued for patent infringement,” the plaintiffs assert that Monsanto’s patents on transgenic seed are invalid. They argue that “only technology with a beneficial societal use may be patented” and vigorously assert several other arguments as a basis to invalidate Monsanto’s transgenic seed patents.  They make some very technical arguments rooted in patent law: (1) Monsanto violated the prohibition in the patent law against “double patenting” since later patents are not “patentably distinct from a patent it already owns” and (2) it failed to satisfy patent law requirements of “written description, enablement and best mode.”  The plaintiffs also contend that Monsanto should be equitably estopped from asserting patent rights due to its misuse of its patents, which includes trespass when its transgenic seed contaminates another. Plaintiffs make a negligence-type argument that Monsanto “sells, licenses and distributes its transgenic seed in a manner such that contamination of Plaintiffs is reasonably foreseeable.” In their exhaustive complaint of 47 pages, the plaintiffs also argue that even if Monsanto’s transgenic seed patents are deemed valid and held to be infringed and enforceable against them, Monsanto lacks entitlement to any remedy under law or equity “as no injury happens to Monsanto.”

A major focus of the complaint is to establish the factual basis for the plaintiffs’ assertion that Monsanto’s transgenic seed patents lack a “beneficial societal use” which justifies their invalidation.  Plaintiffs maintain that as Monsanto’s transgenic seed becomes more widely used, then so too will glyphosate (Roundup) “which studies have shown is harmful to human health.”  Plaintiffs contend that “There are also serious questions about whether transgenic seed itself has an effect on human health” [emphasis added]. Plaintiffs also include allegations concerning the case of Liberty Link rice “as evidence of the harm farmers can suffer as a result of contamination of their crop with transgenic genes.”  Liberty Link rice was a rice variety genetically engineered to tolerate Liberty herbicide.  It was field-tested on a small number of sites between 1999 and 2001 but had not been approved for human consumption.  In 2006, extensive contamination of the commercial rice supply by Liberty Link transgenic genes was discovered which led to multiple countries banning the importation of U.S. rice, implementation of strict testing requirements, and removal from the market of entire rice varieties:  “The worldwide total economic loss due to the contamination event was estimated at $741 million to $1.285 billion.”

Moreover, plaintiffs allege that while transgenic seed poses many dangers for society, “its purported benefits have not been achieved.”  They claim that “Monsanto’s propaganda surrounding transgenic seed expresses a promise that its use will increase the quantity of production that can be achieved with the same amount of land.”  Instead, “studies have shown that there is actually no meaningful improvement in yield from using transgenic seed.”  Plaintiffs reference a lawsuit filed by the Attorney General of West Virginia last fall “after his office determined that several published tests contradicted the yield results claimed by Monsanto in its advertising.”  They also assert that Monsanto’s “promise” that use of transgenic seeds “will result in less pesticide and herbicide use” has been disproven by studies, and that evidence shows that the increased use of glyphosate [Roundup] caused by Monsanto’s transgenic seed “has in turn caused weeds to become resistant to the herbicide” citing an article on tenacious new superweeds in the New York Times: Farmers Cope With Roundup-Resistant Weeds by W. Neuman and A. Pollack (May 3, 2010) [www.nytimes.com/2010/05/04/business/energy-environment/04weed.html].

The complaint raises allegations concerning Monsanto’s aggressive assertion of its patents for transgenic seeds noting that “500 farmers are investigated for patent infringement each year” and that “Between 1997 and April 2010, Monsanto filed 144 lawsuits against farmers in at least 27 different states for alleged infringement of its transgenic seed patents and/or breach of its licene to those patents.”  Most serious is the allegation that “Monsanto has made accusations of patent infringement against those who never wished to possess its transgenic seed.”  The complaint cites the nationally broadcast CBS Evening News segment entitled, “Agricultural Giant Battles Small Farmers: Monsanto Goes to Great Lengths to Protect Its Patents on Genetically Modified Crops” [www.cbsnews.com/stories/2008/04/26/eveningnews/main4048288.shtml].

The complaint minimizes Monsanto’s commitment to “not exercise our patent rights where trace amounts of our patented seeds or traits are present in a farmer’s fields as a result of inadvertent means” on a page entitled “Monsanto’s Commitment: Farmers and Patents” on its website [www.monsanto.com/newsviews/Pages/commitment-farmers-patents.aspx].  Plaintiffs assert that this commitment by Monsanto fails to define what is meant by “trace amounts” or “inadvertent means.”  Plaintiffs fear that Monsanto will assert its transgenic seed patents against certified organic and non-transgenic seed farmers “who come to possess more than ‘trace amounts’ of Monsanto’s transgenic seed, even if it is not their fault.”

In an  insightful article, entitled Food Culture, with the subtitle, Genetically modified agriculture holds both the promise of drought and virus-resistant crops and the peril of unraveling the natural food chain, in a recent issue of Audubon Magazine, March-April 2011 [www.audubonmagazine.org/features1103/biotech.html], writer Alisa Opar notes that the “USDA to date has approved more than 70 applications for transgenic plants.”  Since the first transgenic crops were planted 15 years ago, according to Ms. Opar, their use has “skyrocketed.”  With reference to  Monsanto’s transgenic seed with the glyphosate-resistant trait, she notes that “Glyphosate-resistant weeds, like horseweed, are popping up,” and she writes that “Monsanto’s solution is to engineer a trait for resistance to an older herbicide called dicamba.” Such step would put even more pesticides into the environment, and Penn State weed ecologist Dave Mortensen is quoted as estimating that “herbicide use on [soybeans] will increase by 70 percent in a few years.”  A scientist from the Center for Food Safety worries that “Dicamba is a lot nastier than glyphosate, because of volatilization and its toxicity.” Ms. Opar also cites the testimony of Steve Smith, director of agriculture for Red Gold, America’s largest private canned-tomato processor in testimony before Congress: “The widespread use of dicamba herbicide possesses the single most serious threat to the future of the specialty crop industry in the Midwest.”  With the filing of their lawsuit, the plaintiffs will compel a federal court to address one major argument against genetically modified food crops: the contamination of crops grown by organic and other non-GMO farmers.  Still, as the Audubon Magazine article suggests, there are other serious perils on the horizon.

Among the sixty Davids, four plaintiffs stand out as parties who have already been damaged by the actions of the defendants, Monsanto Company and Monsanto Technology LLC.  If their allegations can be proven, a defense by Monsanto rooted in a “lack of ripeness” of the complaint would seem without merit.  Plaintiff North Outback Farm, an organic farm in Wales, North Dakota, owned and operated by Janet and Terry Jacobson, is a grain and livestock farm on which the Jacobsons grow alfalfa, wheat, oats and flax.  Their farm is in an area ideally suited for growing canola, but they cannot grow canola because of the widespread use of transgenic canola seed in their area posing a contamination threat for any organic canola crop they may wish to grow.  Similarly, Abundant Acres, a farm in Laclede County, Missouri primarily grows field crops for seed production.  In the past, the farm has grown corn and soybeans “but stopped for fear of transgenic contamination, and possible resultant litigation.”  Plaintiff Bryce Stephens, a certified organic farmer in Jennings, Kansas, whose farm has been certified organic since 1994, previously grew organic corn and soybeans, but discontinued those crops due to the threat of transgenic seed contamination.

In addition to the above three plaintiffs, twenty-three other farms and farmers are named as plaintiffs and are located throughout the United States and Canada: (1) Alba Ranch, a diversified organic family farm/ranch in the Wolf River Valley in northeastern Kansas, (2) Wild Plum Farm, an organically certified farm in Dixon, Montana, (3) Gratitude Gardens, a certified organic seed grower in Concrete, Washington, (4) Richard Everett Farm, LLC, a USDA certified organic farm in Scottsbluff, Nebraska, (5) Philadelphia Community Farm, a community supported (CSA) farm for twenty-two years, near Osceola, Wisconsin, (6) Genesis Farm, a community-supported garden that grows a variety of Biodynamic cultivated vegetables, herbs and fruits, in Blairstown, New Jersey, (7) Chispas Farms LLC, an organic farm in Albuquerque, New Mexico, (8) Kirschenmann Family Farms Inc., a certified organic farm (which used to grow canola), in South Central, North Dakota, (9) Midheaven Farms, a Biodynamic farm in Park Rapids, Minnesota, (10) Koskan Farms, a certified organic farm in Wood, South Dakota, (11) California Cloverleaf Farms, an organic dairy farm in Merced County, California, (12) Taylor Farms, Inc, an organic seed farm in Remonton, Utah, (13) Jardin Del Alma, a certified organic seed producer in Monticello, New Mexico, (14) Ron Gargasz Organic Farms, an organic farm in Volant, Pennsylvania, (15) T & D Willey Farms, a certified organic farm in Madera, California, (16) Quinella Ranch, a certified organic farm in Saskatchewan, Canada, (17) Nature’s Way Farm Ltd, an organic farm in Alberta, Canada, (18) Levke and Peter Eggers Farm, a strongly anti-transgenic seed farm in Alberta, Canada, (19) Frey Vineyards, Ltd, which grows wheat and other crops in its certified Biodynamic and Organic vineyards, (20) Chuck Noble, a conventional farmer in South Dakota who “intends to keep his farm free of genetically engineered traits”, (21) Larhea Pepper, an organic cotton farmer in O’Donnell, Texas, (22) Paul Romero, an organic farmer in Espanola, New Mexico, and (23) Donald Wright Patterson, Jr., who desires to farm organic alfalfa, possibly at “the family farmstead” in Frederick County, Virginia where his farming ancestors settled in 1730.

Twelve seed businesses are also named as plaintiffs: (1) Fedco Seeds Inc. located in Waterville and Clinton, Maine [www.fedcoseeds.com], (2) Adaptive Seeds, LLC, located in Sweet Home, Oregon [www.adaptiveseeds.com], (3) Sow True Seed based in Asheville, North Carolina [http://sowtrueseed.com], (4) Southern Exposure Seed Exchange located in Mineral, Virginia [www.southernexposure.com], (5) Mumm’s Sprouting Seeds based in Canada that sells seed in the United States [www.sprouting.com], (6) Baker Creek Heirloom Seed Co., LLC, based in Mansfield, Missouri [http://rareseeds.com], (7) Comstock, Ferre & Co., LLC, based in Wethersfield, Connecticut [http://comstockferre.com], (8) Seedkeepers, LLC based in Santa Barbara, California [http://ediblegardens.com], (9) Siskiyou Seeds based in Williams, Oregon [www.siskiyouseeds.com], (10) Countryside Organics located in Waynesboro, Virginia [www.countrysidenatural.com], (11) Cuatro Puertas, a New Mexico community development corporation, which operates the Arid Crop Seed Cache, a seed collection established to rescue and reintroduce native, heirloom and forgotten crops, and (12) Interlake Forage Seeds Ltd., based in Canada that sells seed in the United States [www.interlakeforageseeds.com].

The third category of plaintiffs consists of twenty-two agriculture membership organizations or not-for-profit public interest organizations: (1)  Organic Seed Growers and Trade Association [www.osgata.org], (2) Organic Crop Improvement Association International, Inc. [www.ocia.org], (3) OCIA Research and Education Inc., (4) The Cornucopia Institute [www.cornucopia.org], (5) Demeter Association, Inc., the American chapter of Demeter International, the world’s only certifier of Biodynamic farms [www.demeter-usa.org], (6) Navdanya International [www.navdanya.org], (7) Maine Organic Farmers and Gardeners Association [www.mofga.org], (8) Northeast Organic Farming Association/Massachusetts Chapter, Inc. [www.nofamass.org], (9) Northeast Organic Farming Association of Vermont [http://nofavt.org], (10) Rural Vermont, a membership organization that envisions a Vermont local food system which is self-reliant and based on reverence for the earth [www.ruralvermont.org/], (11) Ohio Ecological Food & Farm Association (www.oeffa.org), (12) Southeast Iowa Organic Association, the Iowa Chapter of OCIA International, (13)  Northern Plains Sustainable Agriculture Society [www.npsas.org], (14) Mendocino Organic Network [www.mendocinorenegade.com], (15) Northeast Organic Dairy Producers Alliance [www.nodpa.com], (16) Canadian Organic Growers [www.cog.ca], (17) Family Farmer Seed Cooperative [http://organicseedcoop.com], (18)Sustainable Living Systems [www.sustainablelivingsystems.org], (19) Global Organic Alliance [www.goa-online.org], (20) Food Democracy Now! [www.fooddemocracynow.org], (21) Family Farm Defenders Inc. [http://familyfarmers.org], and (22) Farm-To-Consumer Legal Defense Fund [www.farmtoconsumer.org].

(FW Barrie 5/27/11)

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