A handful of Canadian and U.S. organic growers and ag groups, suing to ensure legal “protection” against seed and ag chem giant Monsanto, has claimed a partial win coming out of their latest loss at a U.S. federal appeal court.
A three-judge panel at the U.S. Court of Appeals for the Federal Circuit in Washington ruled Monday that the organic growers and ag groups “fail to show any risk of suit” against them by Monsanto if trace amounts of the company’s patented crop genetics turned up inadvertently in the growers’ fields.
But the judges did peg “trace amounts” at one per cent of seeds containing Monsanto genetics, and found Monsanto to have essentially disclaimed any intent to sue inadvertent users or sellers, if the crops in question come in below that level.
The growers and other plaintiffs were appealing their loss last year at the U.S. District Court in New York — at which a judge rejected their claim that Monsanto had sued farmers who didn’t want to have the company’s genetics in their crops.
The appeal court judges on Monday noted Monsanto’s often-repeated statement 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 (farmers’) fields as a result of inadvertent means.”
Furthermore, Monsanto in this specific case has said through its lawyers that it’s “unaware of any circumstances that would give rise to any claim for patent infringement or any lawsuit against” the plaintiffs.
“You represent that ‘none of your clients intend to possess, use or sell any transgenic seed, including any transgenic seed potentially covered by Monsanto’s patents,'” Monsanto’s lawyers wrote to lawyers for the plaintiffs, led by the U.S.-based Organic Seed Growers and Trade Association (OSGATA) and Public Patent Foundation (PUBPAT).
“Taking your representation as true, any fear of suit or other action is unreasonable, and any decision not to grow certain crops unjustified,” Monsanto lawyers wrote previously.
“Taken together, Monsanto’s representations unequivocally disclaim any intent to sue appellant growers, seed sellers, or organizations for inadvertently using or selling ‘trace amounts’ of genetically modified seeds,” Judge Timothy Dyk wrote for the appeal judges on Monday.
One per cent
An upper allowable limit on trace contamination hasn’t been officially set in Washington, Dyk noted — but “the appellants argue, and Monsanto does not contest, that ‘trace amounts’ must mean approximately one per cent,” the level allowed under industry seed and product certification standards.
“We conclude that Monsanto 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,” Dyk wrote.
Quoting a U.S. Supreme Court ruling on a case involving shoe company Nike, Dyk said Monsanto, “having taken the position in court that there is no prospect of (infringement by the plaintiffs), would be hard pressed to assert the contrary down the road.”
PUBPAT lawyer Dan Ravicher said in a release Monday that the appeal court’s ruling “means that the farmers did have the right to bring the suit to protect themselves, but now that Monsanto has bound itself to not suing the plaintiffs, the (appeal court) believes the suit should not move forward.”
“Even though we’re disappointed with the court’s ruling not to hear our case, we’re encouraged by the court’s determination that Monsanto does not have the right to sue farmers for trace contamination,” OSGATA president and organic seed farmer Jim Gerritsen said in the same release.
The plaintiffs are now considering whether to ask the U.S. Supreme Court to review the Court of Appeal’s decision, Ravicher said.
Canadian plaintiffs who took part in the appeal include Ottawa-based Canadian Organic Growers; 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.
U.S. court turfs organic growers’ suit against Monsanto, Feb. 27, 2012
Organic growers to appeal court loss against Monsanto, March 28, 2012