According to many family farmers, there is an atmosphere of fear in rural America today. The threat of litigation looms, carried on the wind, by bird and by bee, in the form of Monsanto’s genetically engineered seeds. When these patent-protected drifters settle on a neighbor’s non-GE field, in effect contaminating their crops, unwitting farmers are suddenly at risk for legal retribution from the biotech giant.
In an effort to protect themselves from such spurious lawsuits, 60 family farmers, seed businesses and organic agricultural organizations gathered in federal district court in Manhattan on a chilly January morning to file Organic Seed Growers & Trade Association, et al. v. Monsanto, with hundreds convening across the street in Foley Square in solidarity with the plaintiffs. The lawsuit sought to challenge the validity of Monsanto’s patents and to receive court protection from Monsanto-initiated patent infringement suits.
Less than a month later, Judge Naomi Reice Buchwald dismissed the case, which had garnered international attention, stating, “There is no evidence that plaintiffs are infringing defendants' patents, nor have plaintiffs suggested when, if ever, such infringement will occur.” She went on to scold the farmers for what she claims was “a transparent effort to create a controversy where none exists.”
Buchwald’s strongly worded criticism of the farmers' pursuit of justice is surprising (and perhaps unfair) given Monsanto’s history of aggressively pursuing lawsuits against farmers. Between 1997 and 2010, the company filed 144 lawsuits against farmers for alleged infringement, with another 700 cases settled out of court. Not to be dissuaded from their mission, on March 28 the family farmers filed a Notion of Appealon Judge Buchwald’s ruling.
"Family farmers need the protection of the court," said Maine organic seed farmer Jim Gerritsen, lead plaintiff in the case and president of OSGATA. He emphasized the atmosphere of fear and lack of trust between family farmers and Monsanto. "We reject as naïve and undefendable the judge’s assertion that Monsanto’s vague public relations ‘commitment' should be ‘a source of comfort' to plaintiffs."
This comes amidst a backdrop of growing concern over GMOs, with a recent nationwide poll reporting that 93% of Americans believe GMO foods should be labeled. A record-breaking million-comment petition delivered to the FDA on March 27th demanded as much (sadly but perhaps not surprisingly, the FDA played down the issue and largely ignored the comments, throwing out all but 394 of them). Organic farmers are particularly concerned about cross-contamination with engineered seed; their carefully cultivated crops can lose their organic, GE-free status when unwanted airborne pollen takes up residence in their fields. A court case for them would add insult to considerable injury. It’s a classic case of victim-blaming to take farmers whose fields have been tainted to court, and with the looming threat of contamination and lawsuits, it’s no wonder that farmers feel under attack.
OSGATA et al. aren’t "creating" a controversy where none exists; they are just among the first to take a stand in court against the contentious biotech corporate takeover of our food system. The complaints in their lawsuit fault not only Monsanto, but also the Food and Drug Administration, which regulates labeling. Monsanto’s argument against labeling their products is that their crops are "substantially equivalent" to their un-engineered counterparts and can thus be labeled "all natural.” But in a logistical Catch-22, these crops are considered "substantially equivalent" enough to avoid extensive testing and keep their status from consumers, but they are also "novel" enough to be protected by patents.
Monsanto’s legal battles are often very controversial, particularly in light of endemic corporate-political collusion. The government and legal communities' cozy relationship with Monsanto, reflected in political appointments like former Monsanto Vice President Michael R. Taylor’s position as current deputy commissioner of the FDA and former Monsanto lawyer Clarence Thomas’s position in the Supreme Court, has been a source of ire for many growers.
While Monsanto may have friends in high places, family farmers have the support of a growing food movement. The petition circulated in support of the plaintiffs gathered over 100,000 signatures, and the early-morning January court date attracted the support of many passionate activists.
These issues are complex, representing intersections of power, food, science, technology, transparency and law, but their relevance is clear. What happens in the court room is important for everyone, since Monsanto’s patented seeds potentially affect the entire food system. While the future of this court case remains open, it is also clear that Monsanto’s legal scruples have generated a great deal of much-needed dialogue around these issues, which are by no means uncontroversial.
One of the farmers subjected to Monsanto’s patent infringement litigation, Vernon Bowman, is fighting back, and the Supreme Court is now considering taking on the case. Bowman vs. Monsanto challenges the bio-tech company’s legal ability to patent their self-replicating seeds by calling into question their exception from legal “exhaustion.” In normal patent cases, rights are transferred in the first sale, which is how you could legally sell something you own that has various patented components. In 2011, the courts ruled that this doesn’t apply to Monsanto’s patents because of the self-replicating nature of their technology. Bowman’s is now asking the Supreme Court to consider whether the Federal Circuit erred by “refusing to find patent exhaustion in patented seeds even after an authorized sale” and “creating an exception to the doctrine of patent exhaustion for self-replicating technologies."
Margaret Riche is GRACE’s Public Service Scholar. Riche is in her final year at Hunter College, where she is studying public service and creative writing and is participating in the interdisciplinary Thomas Hunter Honors program.