July 9, 2012

Organic Farmers File Brief in Monsanto Patent Challenge

There is an update in the litigation that involves a challenge to various Monsanto patents on genetically engineered (GE) seeds (Organic Seed Growers and Trade Association v. Monsanto). The lawsuit was filed by a coalition of farmers, seed businesses and agricultural organizations who are concerned with potential allegations of patent infringement if GE crop material inadvertently travels onto their properties. See here for earlier background on this case. The lawsuit was dismissed in federal district court in March.The judge ruled that the plaintiffs lacked standing, not presenting a sufficient immediate controversy to the courts to warrant declaratory judgment jurisdiction. An appeal was lodged at the Federal Circuit and the plaintiffs’ appellate brief has now been filed at the court. The plaintiffs elaborate on their injury, asserting that they have to forego the use of property in order to reduce their risk of contamination by adjacent GE crops and/or they must undertake expensive genetic testing to monitor the appearance of a GE contaminant in their native crops.The brief goes to lengths to detail the specific circumstances of some named plaintiffs as they face imminent potential contamination of their crops, and it asserts that any countervailing measures that plaintiffs take to reduce potential contamination do not defeat their right to standing. The governing standard provided by the Supreme Court in Medimmune v. Genentech is “whether the facts alleged, under all the circumstances show that there is a substantial controversy between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” The defendants have offered a statement that renounces an intention to sue the plaintiffs; however, this has not allayed their concerns and the litigation moves forward. Note that this threshold dispute over standing is simply a predicate to the merits of the complaint; should plaintiffs win on standing, they gain the right to fully contest the validity of the Monsanto patents.

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