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U.S. top court tosses farmers’ pre-emptive suit against Monsanto

The top court in the United States has shut the lid on a years-old action by a handful of Canadian and U.S. organic farmers and other groups seeking legal “protection” from seed and ag chem giant Monsanto.

The Supreme Court of the U.S. on Monday denied a petition from the groups, led by the U.S.-based Organic Seed Growers and Trade Association (OSGATA) and Public Patent Foundation (PUBPAT).

The groups had filed in September 2013 seeking the Supreme Court’s judicial review of their previous losses at the U.S. Court of Appeals in Washington and U.S. District Court in New York.

The farmers and other groups in the suit had sought “pre-emptive protection” against any possibility that Monsanto could sue them if trace amounts of the company’s patented crop genetics turned up inadvertently in the growers’ fields.

However, the Supreme Court’s rejection “should not be misinterpreted as meaning that Monsanto has the right to bring such suits,” PUBPAT executive director Daniel Ravicher, the groups’ lead counsel, said in a release Monday.

Monsanto, he said, as a result of the appeal court’s June 2013 decision, now “may not sue any contaminated farmer for patent infringement if the level of contamination is less than one per cent.”

Specifically, the appeal court in June said it had concluded from Monsanto’s previous statements that the company has “disclaimed any intent to sue inadvertent users or sellers of seeds that are inadvertently contaminated with up to one per cent of seeds carrying Monsanto’s patented traits.”

The court, however, did not grant the plaintiffs “the right to seek pre-emptive protection from Monsanto’s patents,” Ravicher said.

Without such protection, the groups said in their brief to the Supreme Court, “calling attention to any contamination is equivalent to making oneself a target for patent infringement.”

Also, the groups said, without such protection, farmers could not bring action for “trespass or nuisance” if their fields were contaminated with Monsanto genetics, because “doing so would require that they admit possession of Monsanto’s (genetically modified) seed, an admission that would immediately subject them to being countersued for patent infringement.”

“Not worth the cost”

Monsanto reiterated in a statement Monday it “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.”

The lower court rulings found “no controversy” between the parties and the Supreme Court’s decision “brings closure on this matter,” Monsanto said.

In its own brief to the Supreme Court, the St. Louis-based company said the plaintiffs had failed to give “any plausible reason why Monsanto would pursue its patent rights against growers like (the) petitioners, who have no desire to use the technology of the 23 Monsanto patents at issue.”

Since organic growers wouldn’t use herbicides such as glyphosate on their crops, Monsanto said, any inadvertent presence of Monsanto’s herbicide-tolerant genetics in those growers’ fields “would provide no benefit to those growers, and any damages that Monsanto could collect for such minimal use would be trivial and not worth the cost of a patent suit.

“Nor, as a practical matter, could Monsanto even detect such minimal use of its technology.”

Canadian plaintiffs who took part in the appeal include Ottawa-based Canadian Organic Growers (COG); the Peace River Organic Producers Association, at Silver Valley, Alta.; Murray Bast, at Wellesley, Ont.; Mumm’s Sprouting Seeds, at Parkside, Sask.; Quinella Ranch, near Regina; Nature’s Way Farm at Grimshaw, Alta.; and Levke and Peter Eggers Farm at La Glace, Alta.

Three other Canadian plaintiffs who had taken part in the original 2011 suit in New York were not on the list of appellants: Quebec’s Union Paysanne; the Winnipeg-based Manitoba Organic Alliance; and Interlake Forage Seeds, a seed company at Fisher Branch, Man.

In OSGATA’s release Monday, COG member Arnold Taylor warned the U.S. appeal court decision, which now stands, “could leave Canadian farmers out in the cold because their protection may not extend to Canada at all.”

Taylor, an organic grower in Saskatchewan, said he sells crop into the U.S. “and can therefore be liable to claims of patent infringement by Monsanto.”

Given the previous court rulings in this case and the Supreme Court’s refusal to hear it, “Monsanto has effectively gotten away with stealing the world’s seed heritage and abusing farmers for the flawed nature of their patented seed technology,” Dave Murphy, executive director of Iowa-based plaintiff Food Democracy Now, said in OSGATA’s release.

“This is an outrage of historic proportions and will not stand,” he said. — Network

Related stories:
Monsanto policy enough to protect organic growers, court finds, June 12, 2013
U.S. court turfs organic growers’ suit against Monsanto, Feb. 27, 2012

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