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GM Alfalfa - The Last Straw

In March, Canadian Organic Growers signed on to a legal action against Monsanto Company and Monsanto Technology LLC.

The lawsuit is now under appeal consideration, which will be reviewed in early 2013. See below for more information on this important legal challenge. 

The lawsuit is led by the Public Patent Foundation (PUBPAT) based in New York. PUBPAT is well known for standing up to corporate greed against patents that are not in the public interest.

 

Canadian Organic Growers Continues to Stand Up to Monsanto

March 28, 2012 -- Today, in Federal District Court in Manhattan, the Canadian Organic Growers and dozens of other farmers and farm groups, filed the Notice of Appeal to Judge Naomi Buchwald's February 24th ruling dismissing Organic Seed Growers and Trade Association et al v. Monsanto.  The United States Court of Appeals for the Federal Circuit will hear the farmers' appeal, seeking to reinstate the case, which has received worldwide attention.

Farmers are determined to move forward with their lawsuit challenging Monsanto's patents on genetically engineered seed, and the Canadian Organic Growers wants to ensure Canada has strong representation in this action.

"Farmers have the right to protect themselves from being falsely accused of patent infringement by Monsanto before they are contaminated by Monsanto's transgenic seed," said Dan Ravicher, Executive Director of the Public Patent Foundation (PUBPAT), a not-for-profit legal services organization based at Benjamin N. Cardozo School of Law that represents the plaintiffs.

"Farmers are under threat.  Our right to farm the way we choose, and to grow pure organic seed and healthy food on our farms for our families and for our customers is under assault," said Maine organic seed farmer Jim Gerritsen, President of lead Appellant OSGATA. "We are honor-bound to challenge an erroneous ruling which denies family farmers the protection the law says we deserve. We're not asking for one penny from Monsanto. Ultimately, our fight is for justice and is waged to defend the right of the people to have access to good and safe food."
 
 
The Plaintiff/Appellant group is comprised of individual family farmers, small and family-owned seed companies and agricultural organizations.  They are all organic or committed to farming without using genetically engineered seeds, and have no desire to ever farm with Monsanto's patented GMO technology.  However, they are fearful that Monsanto seed will trespass onto their farms and that the resulting contamination of their crops will be viewed by Monsanto as illegal 'possession' resulting in patent infringement allegations. Monsanto's harassment of family farmers is well known in farm country, the biotech seed and chemical giant has one of the most aggressive patent assertion agendas in history.

 

January 2012: In a development celebrated by the organic plaintiffs, Judge Naomi Buchwald announced December 30th that oral arguments on Monsanto's motion to dismiss will be heard in federal district court January 31, 2012 in Manhattan. Judge Buchwald's decision will establish if the eighty-three family farmers, small and family owned seed businesses, and agricultural organizations (comprising the organic plaintiff group represent over 300,000 individuals) will see their day in court.

The landmark lawsuit, filed in March 2011, challenges the validity of Monsanto's transgenic/GMO patents and seeks court protection for innocent family farmers who may become contaminated by Monsanto seed.

"We are grateful that Judge Buchwald has agreed to our request to hear oral argument on the motion," said Jim Gerritsen, President of lead plaintiff OSGATA. "Last August we submitted our written rebuttal and it made clear that Monsanto's motion was without merit. Our legal team, from the Public Patent Foundation, is looking forward to orally presenting our position. The family farmers deserve their day in court. We are anxious that this case go to trial as soon as possible so that our innocent farmers may receive Court protection."

The Canadian Organic Growers (COG), also a plantiff in the case, have been working to support the efforts of the lawsuit and are in close contact with the legal team. COG is also actively working to prevent GMO Alfalfa contamination in Canada, which poses a new and immediate threat for the organic sector.

"Monsanto's technology is harmful for organic producers and processors," said Beth McMahon, Executive Director of the Canadian Organic Growers. "To penalize our growers for GMO contamination adds insult to injury, and we won't back down from this fight."

Monsanto is trying to claim that the lawsuit is more of a publicity stunt than a business matter; however, the organic sector is sure to defend it's rights and livelihoods.

Support COG in defending organic growers from GM contamination today!

August 2011: PUBPAT filed a brief to oppose the defendant's (Monsanto) motion to dismiss:

"This case is about real farmers and real seed businesses who wish to use and distribute organic and conventional seed, but who are at substantial immediate risk of being contaminated by Monsanto's transgenic seed and then sued by Monsanto for patent infringement. It is no mere policy disagreement seeking an advisory opinion on hypothetical facts.

Monsanto has undertaken one of the most aggressive patent assertion campaigns in history, including asserting its patents on transgenic seed against parties who, like Plaintiffs, never wanted to use or distribute such seed. As a result, each of the Plaintiffs is under constant fear of being contaminated by Monsanto's transgenic seed and then sued by Monsanto for patent infringement. This fear is so severe for some of the Plaintiffs that they are completely forgoing growing certain crops that they easily could grow and would like to grow." Read the full motion here.

 

July 2011: The judge gave the defendant permission to file a motion to dismiss the case. PUBPAT was given four weeks to file a brief in opposition to Monsanto's motion to dismiss.

 

June 2011: After the lawsuit was filed in New York, Monsanto issued a statement on its website calling the lawsuit a publicity stunt, reiterating language from their website under Monsanto's Commitment: Farmers and Patents that they would never exert their patent rights against farmers with trace amounts of their seed.

The problem is, Monsanto has sued farmers who have been unwilling victims of their contaminated seed and they continue to do so.

“Our clients don't want a fight with Monsanto, they merely want to be protected from the threat that they will be contaminated by Monsanto's genetically modified seed and then accused of patent infringement,” responded PUBPAT Executive Director Daniel B. Ravicher. “We asked Monsanto to give our clients reassurances they wouldn't do such a thing, and in response Monsanto chose to instead reiterate the same implicit threat to organic agriculture that it has made in the past.”

Monsanto's response to the original filing caused PUBPATENT to amend its lawsuit and refile on June 1rst. 23 new plaintiffs were added to the amended complaint, bringing the total number of plaintiffs to 83. Click here to read the amended legal complaint.

On June 20th, Monsanto filed a letter with the court moving to dismiss the case and if that motion is denied, to transfer the case to St. Louis, their home turf. It is likely that the judge will schedule a hearing soon to discuss this request.

On June 22nd, the Judge asked PUBPATENT to provide a written response to Monsanto's letter. The following day, PUBPATENT responded in writing.

Background

The suit against Monsanto is aimed directly at Monsanto's practice of vigourously defending its patent rights through legal actions against farmers. The company's Seed Piracy newsletter warns farmers that patent infringers could face penalties of up to $200 per acre and identified regions in Canada where a "sizable number" of infringers have been caught. According to lawyers Kurtis Andrews and Jeremy De Beer, Monsanto has reached out of court settlements with over 100 Canadian farmers related to patent infringement. As of 2009 when their paper was published in the Osgoode Hall Law Journal, 10 lawsuits had been filed and 6 had made to to court. According to the authors, the number of U.S. lawsuits is ten times higher and the damage awards have also been much higher. Judges handed Monsanto an average of $400,000 per case, with the largest award in the $3 million range.

 

The PUBPATENT case against Monsanto rests on four points of law:

  • that Monsanto's GM seed patents are invalid for a variety of reasons, including the facts that they do not meet the tests of novelty and of usefullness
  • that Monsanto's GM seed patents cannot be infringed if the plaintiffs' fields become contaminated through no fault of their own
  • that Monsanto's GM seed patents are unenforceable
  • and that Monsanto would not be entitled to any remedy against the plaintiffs