Taken together, Monsanto’s representations unequivocally disclaim any intent to sue appellant growers, seed sellers, or organizations for inadvertently using or selling “trace amounts” of genetically modified seeds…..We conclude that Monsanto has disclaimed any intent to sue inadvertent users or sellers of seeds that are inadvertently contaminated with up to one percent of seeds carrying Monsanto’s patented traits.According to the Federal Circuit, those representations effectively extinguished the claim of legal threat by the plaintiffs:
In sum, Monsanto’s binding representations remove any risk of suit against the appellants as users or sellers of trace amounts (less than one percent) of modified seed. The appellants have alleged no concrete plans or activities to use or sell greater than trace amounts of modified seed, and accordingly fail to show any risk of suit on that basis. The appellants therefore lack an essential element of standing.The Federal Circuit was quite clear in characterizing the nature of Monsanto's representations that plaintiffs had no basis for apprehension:
While Monsanto’s representations are not a covenant not to sue, they have a similar effect. If we rely on Monsanto’s representations to defeat the appellants’ declaratory judgment claims (as we do), those representations are binding as a matter of judicial estoppel.In response to the ruling, OGSATA has stated that “we’re encouraged by the court’s determination that Monsanto does not have the right to sue farmers for trace contamination.” For the plaintiffs, the failure to establish a declaratory judgment action also means that their allegations of the patent invalidity of a number of Monsanto patents will not be heard (e.g., contentions that the patents lacked utility under 35 U.S.C. 101). Plaintiffs may appeal to the Supreme Court (which recently considered the patent exhaustion doctrine in the context of patented genetically engineered seeds in Bowman v. Monsanto; see here).