A coalition of more than 50 trade organizations, seed businesses, farms, and farmers has filed a lawsuit in a federal court in New York, to stop Monsanto Co. from enforcing its genetically engineered (GE) seed patents against farmers whose fields become contaminated with the GE seeds. Organic Seed Growers & Trade Ass’n v. Monsanto Co., No. 11-2163 (S.D.N.Y., filed March 29, 2011). Among other matters, the plaintiffs claim that the seed patents are invalid, because “only technology with a beneficial societal use may be patented,” they violate “the prohibition against double patenting, each is anticipated or rendered obvious by prior art, and each fails to satisfy the requirements of written description, enablement and best mode.”

The plaintiffs also allege that the patents are not infringed by farmers
whose fields become contaminated with GE seeds, because the farmers do
not intend to use them, “and Monsanto’s patent rights in transgenic seed
exhaust upon the authorized distribution by Monsanto to its customers.” They
further claim the company has “committed misuse,” “is equitably stopped
from enforcing” the patents and “commits trespass when its transgenic seed
contaminates another.”

At issue are some 23 patents, which, the plaintiffs contend, are “zealously”
enforced by the company. According to the complaint, “Published reports
and Monsanto’s own statements suggest that roughly 500 farmers are
investigated for patent infringement each year. Between 1997 and April
2010, Monsanto filed 144 lawsuits against farmers in at least 27 different
states for alleged infringement of its transgenic seed patents and/or breach
of its license to those patents.” The plaintiffs also allege that “Monsanto has
made accusations of patent infringement against those who never wished to
possess its transgenic seed.”

The complaint includes four claims for relief—declaratory judgments of
patent invalidity, non-infringement, unenforceability and no entitlement
to any remedy. The plaintiffs seek an injunction to stop the company “from
taking any action to enforce any patent in suit” and an order for costs and
attorney’s fees.

Monsanto reportedly characterized the lawsuit as invalid and a “publicity stunt.” According to the company, it has never sued farmers for the inadvertent presence of biotechnology traits in their fields. In a statement, the company said, “These efforts seek to reduce private and public investment in the development of new higher-yielding seed technologies. While we respect the views of organic farmers as it relates to the products they choose to grow, we don’t believe that American agriculture faces an all-or-nothing approach.” The Public Patent Foundation, which filed the lawsuit on behalf of the coalition, disagreed that GE seed can coexist with organic seed. The foundation’s executive director aid, [H]istory tells us that’s not possible, and it’s actually in Monsanto’s financial interest to eliminate organic seed so that they can have
a total monopoly over our food supply.” See Reuters and Public Patent Foundation Press Release, March 29, 2011.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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