The Organic Seed Growers and Trade Association et al. v Monsanto lawsuit is back in court. After being dismissed in February by U.S. District Judge Naomi Buchwald, the case was appealed to the U.S. Court of Appeals for the Federal Circuit in Washington. Early this week, the OSGATA group announced fresh reinforcements as they appealed to the higher court. A coalition of 25 law professors and organic advocate organizations filed briefs supporting OSGATA.
The plaintiffs' initial contention was that they "are increasingly being threatened by transgenic seed contamination despite using their best efforts to avoid it." It centered around approval of Roundup-ready alfalfa, developed as a genetically-modified organism.
OSGATA contends that GMO contamination of organic seed constitutes irreparable harm to the organic seed industry and undermines the integrity of organic seed. Any detectable level is unacceptable. The suit also contends there's a perceived threat that Monsanto could sue farmers if pollen from GMO plants were inadvertently carried to non-GMO plants by pollinators.
Sensationalism has run rampant on this case with the help of lead attorney Dan Ravicher of the legal organization Public Patent Foundation. OSGATA and PUBPAT claim America's farmers are fighting a "scorch earth legal campaign of threats and intimidation" by Monsanto. Ravicher argues that "Monsanto continues to refuse to simply promise never to sue contaminated farmers for patent infringement."
Army of anti-GMOs
Eleven law professors and 14 organic advocacy groups have joined the fray. That includes professors from University of Virginia, Yeshiva University, New York University, University of Utah, University of Wisconsin, Catholic University of America, Marquette University, University of San Diego and University of Illinois.
Their amicus brief claims: "In actions challenging the validity of a patent, the alleged injury is not only the risk of an infringement suit, but a present restraint on economic activity due to the presence of a potentially invalid exclusive right."
The 14 advocacy groups include: Farm and Ranch Freedom Alliance, Biodynamic Farming and Gardening Association, Carolina Farm Stewardship Association, Food and Water Watch, International Organic Inspectors Association, Maine Alternative Agriculture Association, Michigan Land Trustees, Natural Environmental Ecological Management, Nebraska Sustainable Agriculture Society, Organic Consumers Association, Slow Food USA, Virginia Association for Biological Farming, Virginia Independent Consumers and Farmers Association, and Wisconsin Natural Food Associates.
In their amicus brief, one of their arguments is that "Farmers and seed businesses have suffered significant harm due to the threat of patent infringement suits by Monsanto. Plaintiffs' uncontroverted allegations show that, for the first time in history, they can be sued for something as natural as pollen drift, while simultaneously being forced to take expensive and burdensome steps in order to continue their normal businesses."
But Monsanto has promised – publicly
Judge Buchwald specifically noted there was neither a history of behavior nor a reasonable likelihood that Monsanto would pursue patent infringement against farmers having no interest in using the company's patented seed products. She also noted that OSGATA's allegations were "unsubstantiated …given that not one single plaintiff claims to have been so threatened."
"Monsanto never has and has committed it never will sue if our patented seed or traits are found in a farmer's field as a result of inadvertent means," says Monsanto Spokesperson Nicolas Weber.
Kyle McClain, general counsel for the company notes that Monsanto has had a long-standing public commitment that "it has never been, nor will it be, Monsanto policy to exercise its patent rights where trace amounts of our patented seeds or traits are present in a farmer's fields as a result of inadvertent means."
"Monsanto believes that all farmers should have the opportunity to select the production method of their choice – whether that be organic, conventional or the improved seeds developed using biotechnology," McClain notes. "OSGATA continues to ignore the role that all agriculture production systems can and do play in meeting the needs of our growing world."
So is Monsanto a "menacing bear" or is the OSGTA case a "Trojan horse" for those rallying against biotechnology? This appeals court decision could have a profound impact.