A federal court in New York has dismissed, for lack of jurisdiction, the claims
filed by numerous organic farming interests seeking a declaration that they
are not infringing Monsanto’s genetically modified (GM) seed patents, the
patents are invalid and unenforceable and the company would not be entitled
to remedies against them. Organic Seed Growers & Trade Ass’n v. Monsanto
Co., No. 11-2163 (S.D.N.Y., decided February 24, 2012). According
to the court, because Monsanto has an express policy not to bring infringement
actions against a farmer whose fields have trace amounts of its seed or
traits “as a result of inadvertent means,” such as seed drift, cross-pollination or commingling with tainted equipment, the plaintiffs are unable to establish a substantial controversy or an injury traceable to the defendant.

While Monsanto has brought 144 infringement actions against farmers
over a 13-year period, the court found this insignificant given the 2 million
farms currently operating in the United States. In addition, the company has
apparently never brought an infringement action against an organic farming
operation. The court also determined that the suits which had been filed did
not involve similarly situated parties; rather, they involved farmers who had
saved GM seeds in violation of their licenses or intentionally induced others to
infringe Monsanto’s patents.

Discussing a letter the plaintiffs sent to Monsanto demanding an express
waiver of any claim for patent infringement the company may ever have
against the plaintiffs and to memorialize that waiver with a written covenant
not to sue, the court suggested that it seemed “to have been nothing more
than an attempt to create a controversy where none exists. This effort to
convert a statement that defendants have no intention of bringing suit into
grounds for maintaining a case, if accepted, would disincentivize patentees
from ever attempting to provide comfort to those whom they do not intend
to sue, behavior which should be countenanced and encouraged. In contrast,
plaintiffs’ argument is baseless and their tactics not to be tolerated.”

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.