February 29, 2012
Organic Farmers Lawsuit Against Monsanto: Not a "Controversy" Yet
There is a ruling in the federal lawsuit brought by a large coalition of organic farmers against Monsanto, seeking a preemptive ruling (declaratory judgment) of non-infringement and patent invalidity in contemplation of possible inadvertent contamination of their fields by Monsanto's patented transgenic seed materials (sometimes referred to as genetic trespass). To date, Monsanto has vigorously enforced its seed patents against farmers (patent infringement can be alleged whether the use of a patented invention is deliberate or inadvertant). In this case, Judge Buchwald has ruled that the plaintiffs are not entitled to seek a declaratory judgment because a sufficient controversy has not developed to warrant the court’s involvement (noting “plaintiffs’ transparent effort to create a controversy where none exists”); she also placed weight on a letter from Monsanto in which it indicated that it had no intention of suing the plaintiffs (the judge called this “a source of comfort rather than worry”). Thus, the judge has not regarded the controversy as particularly acute or immediate, and will not entertain the lawsuit. Early reaction from the plaintiffs is that they will appeal the ruling to the Federal Circuit. The case has been closely watched as it placed the farmers in a proactive stance, seeking to clarify their legal position and, if successful, remove what they consider to be the ongoing legal threat of a patent infringement lawsuit for activities (involuntary contamination of crops) that were not deliberate or welcome. The judge effectively did not regard the plaintiffs' contention that they refrain from certain plantings due to patent enforcement implications as warranted, given her view of the defendant's likely response, and certainly not indicative of any legal injury. Although unrelated cases, there is some overlap with the contentions of the plaintiffs in the gene patent case, AMP v. USPTO, in which plaintiffs allege that they could not conduct genetic testing due to fear of patent infringement litigation (AMP is cited by the judge, but some of this works against the farmers here, who cannot point to the same direct assertion of patent rights that Myriad Genetics displayed and which then structured plaintiffs' activities).