May 27th, 2011
According to a Federal lawsuit recently filed by the Public Patent Foundation [www.pubpat.org] in the Southern District of New York on behalf of the Northeast Organic Farming Association/Massachusetts Chapter, Inc. [www.nofamass.org] and 59 other plaintiffs, Monsanto Corporation has bullied farmers who have resisted its Round-Up Ready Technology [Organic Seed Growers & Trade Association, et al. v. Monsanto, 11 CIV 2163, Judge Naomi Buchwald). According to Daniel Ben Ravicher (University of Virginia Law School, 2001), lead attorney in the case and the Public Patent Foundation's Executive Director and Lecturer of Law at Cardozo School of Law in New York City, "it seems quite perverse that a farmer contaminated by [transgenic seed] could be accused of patent infringement, but Monsanto has made such accusations before and is notorious for having sued hundreds of farmers for patent infringement, so we had to act to protect the interests of our clients.”
Monsanto, with revenue of $10.5 billion and operating income of $1.6 billion in fiscal year 2010, is a Goliath in the “global proprietary seed market.” It markets and sells transgenic seed (also known as genetically modified or genetically engineered seed), and according to the legal complaint, Monsanto sells Roundup Ready seed for corn, canola, soybean, sugar beet, alfalfa and cotton. In the United States, plaintiffs assert that “Monsanto’s control of the seed market is so high that over 85-90% of all soybeans, corn, cotton, sugar beets and canola grown in the U.S. contains Monsanto’s patented genes.”
The plaintiffs are largely organic farmers and organic seed businesses who do not want to use or sell transgenic seed, as well as some non-organic farmers who wish to farm without transgenic seed. Plaintiffs fear that they could be perversely accused by Monsanto of patent infringement and bring their lawsuit to obtain a declaratory judgment “to protect themselves from ever being accused of infringing patents on transgenic seed.” They cite a long history of Monsanto aggressively asserting its patents for transgenic seeds against hundreds of farmers, including farmers who became contaminated by Monsanto’s transgenic seed through no fault of their own. This fear “causes some of the farming plaintiffs to forgo growing certain crops, including corn, cotton, canola, sugar beets, soybeans and alfalfa, since it is widely known that those crops are currently under severe threat of transgenic seed contamination.”
The plaintiffs sketch out in detail the nature of Monsanto’s transgenic seeds and forcefully assert that “Society stands on the precipice of forever being bound to transgenic agriculture and transgenic food.” Transgenic seeds are genetically engineered through the introduction of foreign genes and regulatory sequences into the seeds’ genome. Monsanto’s most predominant transgenic trait is “glyphosate tolerance” which makes crops tolerant of Monsanto’s glyphosate-based herbicide called Roundup. Roundup causes severe injury or destruction when applied to crops that are not glyphosate tolerant.
Plaintiffs claim that coexistence between transgenic seed and organic seed is impossible because transgenic seed contaminates and eventually overcomes organic seed. Organic canola has become virtually extinct as a result of transgenic seed contamination according to the complaint, and organic corn, soybean, cotton, sugar beet, and alfalfa face the same fate “as transgenic seed has been released by Monsanto for each of those crops.”
Among the sixty Davids, four plaintiffs stand out as parties who have already been damaged by the actions of the defendants, Monsanto Company and Monsanto Technology LLC. If their allegations can be proven, a defense by Monsanto rooted in a “lack of ripeness” of the complaint would seem without merit. Plaintiff North Outback Farm, an organic farm in Wales, North Dakota, owned and operated by Janet and Terry Jacobson, is a grain and livestock farm on which the Jacobsons grow alfalfa, wheat, oats and flax. Their farm is in an area ideally suited for growing canola, but they cannot grow canola because of the widespread use of transgenic canola seed in their area posing a contamination threat for any organic canola crop they may wish to grow. Similarly, Abundant Acres, a farm in Laclede County, Missouri primarily grows field crops for seed production. In the past, the farm has grown corn and soybeans “but stopped for fear of transgenic contamination, and possible resultant litigation.” Plaintiff Bryce Stephens, a certified organic farmer in Jennings, Kansas, whose farm has been certified organic since 1994, previously grew organic corn and soybeans, but discontinued those crops due to the threat of transgenic seed contamination.