In the age of patent protection, there’s lots of precedent for corporate giants suing farmers – but few farmers willing to take on the corporations.
Well, meet Paul Gregory. He is among 60 farmers, producer groups and seed companies suing Monsanto Co. by challenging its patents on genetically modified seed.
Gregory, who owns Interlake Forage Seeds of Fisher Branch, is among a handful of Canadians joining the suit launched by the Public Patent Foundation (PUBPAT), a legal services foundation in New York.
PUBPAT filed the suit on behalf of its clients in a U.S. district court in New York state March 29.
The plaintiffs are mostly organic producers seeking a court injunction to prevent Monsanto from suing them for patent infringement should their crops become contaminated with Roundup Ready seed.
Gregory isn’t actually an organic grower, although his company does process both organic and non-organic forage seed.
But he still has a keen interest in the case involving a crop that isn’t even in Manitoba yet: Roundup Ready alfalfa.
The U.S. Department of Agriculture recently cleared the genetically modified forage crop for unrestricted release in the United States. Monsanto holds the patent for the Roundup Ready technology. Forage Genetics International, an Idaho-based company, is licensed to produce the seed.
FGI says it has no plans to release Roundup Ready alfalfa in Canada unless growers want it. Label approval for Monsanto’s application, currently before the Pest Management Regulatory Agency, to use Roundup on the crop could take up to two years.
But Gregory feels it’s just a matter of time before Roundup Ready alfalfa genes find their way from the U.S. into Canada, either by regulation or accident.
If that happens, he fears his business could be ruined.
Interlake Forage Seeds makes a third of its annual sales to Europe, which has a zero tolerance for GM material in imported seed. Gregory believes any cross-contamination of Roundup Ready alfalfa with non-GM alfalfa will cut off his seed shipments to the EU.
Not just alfalfa either. Gregory says any foundation or certified seed lot invariably contains a few seeds from other crops. For that reason, the Canadian Seed Growers Association has standards for allowable levels of other seeds in a shipment.
What this means is that if Roundup Ready alfalfa came to Canada, its stray seeds would inevitably find their way into other forage seed shipments, making them also ineligible for sale to Europe, says Gregory.
“It would be impossible to have seed lots with that gene not in them,” said Gregory. “Once it becomes established, we would lose all conventional timothy, tall fescue, meadow fescue and most grass, turf and forage seed.”
Gregory outlined his concerns to the recent Manitoba Organic Alliance annual meeting in Winnipeg.
His fears have merit, according to Rene Van Acker, a plant scientist at the University of Guelph.
It’s an established fact that once a genetically modified crop is introduced, its genes will eventually cross-contaminate similar non-GM crops, said Van Acker, who has studied GM gene flow extensively.
That’s the case with GM canola, first introduced to Western Canada in 1995. Today, it’s almost impossible to find a seed lot of non-GM canola that does not have some GM genes in it, he said.
As a result, every canola grower in Western Canada is an “unintended infringer” – someone using Monsanto’s patented technology even if they do not mean to, Van Acker said.
That goes to the heart of PUBPAT’s case. Its lawyers argue Monsanto could go after farmers for “adventitious presence” of Roundup Ready genes in their corn, soybean, canola, cotton, sugar beet and alfalfa crops.
“This case asks whether Monsanto has the right to sue organic farmers for patent infringement if Monsanto’s transgenic seed should land on their property,” said Dan Ravicher, PUBPAT’s executive director.
The statement of claim filed by PUBPAT asks for protection against such action by Monsanto.
“As non-transgenic seed farmers and seed sellers, plaintiffs already have to deal with the constant threat of seed contamination that could destroy their chosen livelihood. They should not also have to live with the threat of being sued for patent infringement should that travesty come to pass. They now ask this court to provide them with the declaratory relief to which they are entitled,” it says.
In a statement, Monsanto called PUBPAT’s allegations “false, misleading and deceptive.” It said the company would only go after someone who deliberately grows its patented crops without a signed use agreement.
“It has never been, nor will it ever 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,” the statement said.
But what level of presence would Monsanto tolerate before deciding to take legal action? The company’s disclaimer leaves that question unanswered, said Van Acker.
“By saying that, Monsanto shows that, in fact, it is up to them to decide who they pursue,” he said.
“Suing somebody for one per cent presence is nonsense. But what is the level? Is it 50 per cent? More? Less?
“The way it stands, there’s ambiguity. And I think that ambiguity needs to be addressed. It needs to be clear that proportion matters and that proportion relates to functionality of the invention.” [email protected]
Itwouldbeimpossible tohaveseedlotswith thatgenenotinthem.”
– PAUL GREGORY