January 19, 2013
Organic Farmers v. Monsanto: Federal Circuit Oral Arguments in Challenge to GE Seed Patents
The Federal Circuit heard oral arguments this week in a case where organic farmers are attempting to proactively litigate any potential infringement liability related to Monsanto patents on genetically engineered (GE) seeds (see here and here). The case is Organic Seed Growers and Trade Association (OGSATA) v. Monsanto, a declaratory judgment (DJ) action in which OGSATA and other plaintiffs seek to litigate the question of whether inadvertent contamination of their crops by Monsanto (GE) seed could give rise to a potential patent infringement claim by Monsanto. The threshold issue for the plaintiffs has been to establish standing for the suit, relying on their assertions that the prospect of infringement litigation from Monsanto has caused them to limit or halt their farming activities. In 2012, a lower federal court ruled that the plaintiffs could not meet the threshold showing for sustaining a DJ action, and dismissed the case. In the appeal to the Federal Circuit, the oral argument focused on determining whether a “substantial controversy between parties having adverse legal interests of sufficient immediacy and reality" – as required by the Supreme Court in Medimmune v. Genentech (2007) – exists. If so, a DJ action allows the plaintiffs to ask a court to adjudicate whether inadvertent contamination rises to the level of patent infringement, and whether the Monsanto patents are invalid under numerous patent law doctrines. Because patent infringement is generally regarded as a strict liability tort (intention irrelevant), passive contamination of an agricultural field by a patented product could be characterized as a patent infringing use. During the oral arguments, both parties faced skepticism from the court – the plaintiffs (farmers) were challenged as to how imaginary their fear of suit might be, and whether they had real instances of legal threat or action that supported their claim; the defendant (Monsanto) faced questions over what standard they would apply to elevate a case of trace contamination into a legal complaint of patent infringement, or whether a farmer who discovered contamination could then use contaminated seed (because it might be too difficult to cull from the rest of the crop) without being accused of patent infringement, or whether farmers would need to engage in genetic testing of their fields to help defend themselves against any allegations of infringement. Without knowing how the court will rule, perhaps the litigation has provided a measure of relief for the farmers: in response to a direct question from the court in oral argument, counsel for Monsanto agreed that representations in the court regarding the lack of the company’s intention to sue for trace contamination might give rise to judicial estoppel for plaintiffs to rely on later. The litigation was undertaken because the farmers had been unable to secure any enforceable covenant not to sue from Monsanto.