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NEW YORK - June 1, 2011 - New threats by Monsanto have led to the filing of anamended complaint [link] by the Public Patent Foundation (PUBPAT) in its suit on behalfof family farmers, seed businesses, and organic agricultural organizations challengingMonsanto's patents on genetically modified seed. Twenty-three new plaintiffs have joinedwith the original 60 in the amended complaint, bringing the total number represented inthe case to 83. The plaintiffs in the suit, titled Organic Seed Growers and TradeAssociation (OSGATA), et al. v. Monsanto and pending in the Southern District of NewYork, now include 36 family farmer, food, agricultural research, food safety, andenvironmental organizations representing hundreds of thousands of members includingseveral thousand certified organic, biodynamic, or otherwise non-transgenic family farmers.
"Our clients don't want a fight with Monsanto, they just want to be protected from thethreat they will be contaminated by Monsanto's genetically modified seed and then beaccused of patent infringement," said PUBPAT Executive Director Daniel B. Ravicher."We asked Monsanto to give our clients reassurance they wouldn't do such a thing, andin response they chose instead to reiterate the same implicit threat to organic agriculturemade in the past."
Soon after the March filing of the lawsuit, Monsanto issued a statement saying theywould not assert their patents against farmers who suffer "trace" amounts of transgeniccontamination. In response, and in the hope the matter could be resolved out of court,PUBPAT attorneys wrote Monsanto's attorneys asking the company to make its promiselegally binding. Monsanto responded to PUBPAT's request by hiring former solicitorgeneral, Seth P. Waxman, a partner in the Washington, D.C. office of WilmerHale, whorejected PUBPAT's request and instead confirmed Monsanto may indeed make claims ofpatent infringement against organic farmers who become contaminated by Monsanto'sgenetically modified seed. Copies of both letters are available as exhibits at the end of theamended complaint.
"Monsanto's letter was an empty, indefensible, and self-evident evasion showing they areonly interested in spinning propaganda without taking serious steps to resolve theproblem created for organic and non-transgenic agriculture," said one of the co-plaintiffsin the suit, Don Patterson of Virginia. "With the Monsanto letter signed by Waxman, thecompany rolled out their biggest legal cannon, but they fired off only fluffy wadding andsmoke," as he views it. "The letter shows Monsanto wanting to protect their freedom tothreaten farmers with patent infringement suits," he states; "Both the threats and thelawsuits are clearly important to their marketing strategy and business model."
"Despite their empty propaganda to the contrary, they plainly do not want to give upthese tactics," Patterson asserts. "Monsanto has collected multiple millions of dollars insettlements often from family farmers without the resources to defend themselves," hereports; "Too many have had to settle because they could not afford to fight."
"The serious issues being engaged in this case require a constructive and socially-acceptable response from the defendant in the public interest," adds Maine farmer JimGerritsen, President of OSGATA, the lead plaintiff in the suit. "In the absence of that, wereassert the essential importance of the arguments stated in March and reinforced now bythe additional evidence of the Monsanto intransigence. Monsanto's utter failure to actreasonably to address our concerns has only reaffirmed the need for our lawsuit."
"We don't think we are asking too much to want assurance that if Monsanto's transgenicgenes contaminate our crops we will not be sued by Monsanto," adds Iowa organic dairyfarmer Francis Thicke, owner of plaintiff Radiance Dairy; "It is bad enough that we facethe threat of contamination of our organic and non-transgenic crops. The least Monsantocan do is give us assurance that they won't sue us for their own genetic trespass."
The amended Complaint elaborates a fear tangibly vexing many family farmers:"Monsanto continued in the statement to perversely characterize this suit as an 'attack,'when Plaintiffs seek no money from and no injunction against them. All Plaintiffs seek ispeace of mind if they are ever contaminated by Monsanto's transgenic seed, the companycould never sue them for patent infringement. This is not an attack by the Plaintiffs and tocharacterize it that way only further evidences Monsanto's aggressive and threateningattitude with respect to its patents. Thus, the statement made by Monsanto in response tothis suit has only served to heighten Plaintiff's fear that Monsanto will seek to enforce itspatents against them should they ever be contaminated by Monsanto's transgenic seed."
"It is outrageous that our entire farm, family business, and livelihood could be at riskbecause of Monsanto's backward and oppressive response and enforcement towardsfarmers in regards to transgenic pollen drift, unasked for and unwanted-and thesubsequent results in fields and farms," says Ruth Chantry of Common Good Farm inNebraska; "Any transgenic pollen drift that would ever come onto our farm is of greatdetriment to us, and as such, it is an invasion upon and a contamination of our crops, themulti-species habitat we are assisting and creating here-and to the integrity of how weare farming organically and Biodynamically."
The request for court protection through a declaratory judgment is a primary objective ofthe case. The suit also argues the invalidity of Monsanto's transgenic Roundup Readypatents under both statute and case law precedent requiring patented products todemonstrate clear social utility and not be dangerous to health. Four basic contentions,ranging from the patent invalidity, through the establishment of proper requirements for a finding of patent infringement to patent unenforceability and Monsanto's lack ofentitlement to collect damages were asserted in the original complaint filed March 29,2011. Court relief is being sought to protect organic farmers and other growers of non-transgenic crops from liability should unwanted transgenic contamination occur in theirfields. The response to the PubPat letter of April 18 was received on April 28 from theMonsanto attorneys. When no binding legal covenant was provided, Ravicher states, thefiling of the amended complaint was required to make the defendant's position fully clear."The reply from Monsanto is insufficient and unsatisfactory to protect the interests of myclients," said Ravicher.
The biotech impact on the quality, safety, and nutritional integrity of food will be broughtup for public and courtroom scrutiny, so that the truth can be determined between theirarguments and ours, states Ravicher; "If Monsanto is proud of what they do, they shouldbe happy for the opportunity to present the evidence in support of their ideal." To helpstimulate and promote objective debate between the differing agricultural philosophies,the new group of plaintiffs has joined the case as part of today's filing. Included amongthese are groups long committed to food safety and environmental responsibility in thepublic interest. Some of the new plaintiffs have been prominent in other legal actions andadvocacy against Monsanto's efforts to aggressively and monopolistically assert itschemically and transgenically-dependent agricultural system.
Marty Mesh, Executive Director of Florida Organic Growers, states, "We join this suitwith sadness but feel compelled to seek justice. If Organic farmers, seed growers, andcompanies have no assurance that technology they have never asked for, never signed alicensing agreement to use, have no desire to be a part of, and in fact, go to great lengthsto avoid, can still trespass on their farms and subject them to a lawsuit by the patentholder who seemingly escapes all liability for that trespass, then it is not only morallywrong, ethically unjust, but also legally perverse."
In addition to supplementing the complaint with Monsanto's most recent clarifyingstatement confirming its threat to the plaintiffs and GMO-free agriculture, the new groupof 23 organizations, seed companies, farms and individual farmers includes fourteenorganizations: Weston A. Price Foundation, Center for Food Safety, Beyond Pesticides,Northeast Organic Farming Association of Rhode Island, Northeast Organic FarmingAssociation of New Hampshire, Northeast Organic Farming Association of Connecticut,Northeast Organic Farming Association of New York, Western Organic Dairy ProducersAlliance, Manitoba Organic Alliance, Michael Fields Agricultural Institute (Wisconsin),Midwest Organic Dairy Producers Alliance, Florida Organic Growers, Peace RiverOrganic Producers Association (Alberta and British Columbia) and Union Paysanne(Quebec); two seed companies: Seed We Need (Montana), Wild Garden Seed (Oregon);and seven farms or individual farmers: Common Good Farm, LLC (Nebraska), AmericanBuffalo Company (Nebraska), Full Moon Farm, Inc. (Vermont), Radiance Dairy (Iowa),Brian L. Wickert (Wisconsin), Bruce Drinkman (Wisconsin), and Murray Bast (Ontario).
These plaintiffs join the 60 plaintiffs from the original filing of the lawsuit in Marchincluding twenty-two organizations: Organic Seed Growers and Trade Association;Organic Crop Improvement Association International, Inc. (OCIA); OCIA Research andEducation, Inc.; The Cornucopia Institute; Demeter Association, Inc.; NavdanyaInternational; Maine Organic Farmers and Gardeners Association; Northeast OrganicFarming Association/Massachusetts Chapter, Inc.; Northeast Organic FarmingAssociation of Vermont; Rural Vermont; Ohio Ecological Food & Farm Association;Southeast Iowa Organic Association; Northern Plains Sustainable Agriculture Society;Mendocino Organic Network (California); Northeast Organic Dairy Producers Alliance;Canadian Organic Growers; Family Farmer Seed Cooperative; Sustainable LivingSystems (Montana); Global Organic Alliance; Food Democracy Now!; Family FarmDefenders, Inc.; Farm-to-Consumer Legal Defense Fund; twelve seed companies:FEDCO Seeds, Inc. (Maine); Adaptive Seeds, LLC (Oregon); Sow True Seed (NorthCarolina); Southern Exposure Seed Exchange (Virginia); Mumm's Sprouting Seeds(Saskatchewan); Baker Creek Heirloom Seed Co., LLC (Missouri); Comstock, Ferre &Co. LLC (Connecticut); Seedkeepers, LLC (California); Siskiyou Seeds (Oregon);Countryside Organics (Virginia); Cuatro Puertas (New Mexico); Interlake Forage Seeds,Ltd. (Manitoba); and, twenty-six farms and farmers: Alba Ranch (Kansas); Wild PlumFarm (Montana); Gratitude Gardens (Washington); Richard Everett Farm, LLC(Nebraska); Philadelphia Community Farm, Inc. (Wisconsin); Genesis Farm (NewJersey); Chispas Farms, LLC (New Mexico); Kirschenmann Family Farms, Inc. (NorthDakota); Midheaven Farms (Minnesota); Koskan Farms (South Dakota); CaliforniaCloverleaf Farms; North Outback Farm (North Dakota); Taylor Farms, Inc. (Utah); Jardindel Alma (New Mexico); Ron Gargasz Organic Farms (Pennsylvania); Abundant Acres(Missouri); T & D Willey Farms (California); Quinella Ranch (Saskatchewan); Nature'sWay Farm, Ltd. (Alberta); Levke and Peter Eggers Farm (Alberta); Frey Vineyards, Ltd.(California); Bryce Stephens (Kansas); Chuck Noble (South Dakota); LaRhea Pepper(Texas); Paul Romero (New Mexico); and, Donald Wright Patterson, Jr. (Virginia).
In the face of the established historical record of over 100 lawsuits brought againstfarmers, the amended PUBPAT complaint asserts, "Monsanto implicitly acknowledgesthat its transgenic seeds can contaminate the property of non-transgenic farmers," but inits asserted "commitment" to not sue farmers over "inadvertent," and "trace" amounts ofcontamination, the company fails to define either term. Therefore, the Complaint argues,"the clear implication is that Monsanto indeed intends to assert its transgenic seed patentsagainst certified organic and non-transgenic farmers who come to possess more than'trace amounts' of Monsanto's transgenic seed, even if it is not their fault."
When Monsanto sued family farmer Percy Schmeiser in Canada over contaminationcaused by transgenic seed blown off a passing neighbor's truck, it cost him a half milliondollars to fight them, and he had to mortgage his farm to raise the money, Pattersonrecalls. In the process, he lost control over 50 years of his own traditional, non-transgenic seed development work, according to Patterson and published reports telling theSchmeiser story. "Monsanto reportedly spent $4 million on their case against Schmeiser,"Patterson says. Percy Schmeiser told him Monsanto had 19 lawyers at one point in thecourtroom up against his own single lawyer. "In the school yard and in the NFL, that iscalled 'piling on,'" he concludes.
"The issues raised in the lawsuit are critical, not just to organic farmers and others whodo not want to grow genetically-modified (transgenic) crops," Gerritsen says, but "also tothe safety of food and everyone who eats-and that includes everyone concerned aboutenvironmental protection and public health." As Gerritsen sees the lawsuit, "This is notjust a minor dispute between a few family farmers and a powerful corporationaccustomed to getting its own way; it is a debate over who offers the best and mostresponsible way to feed the people of the world over the decades and centuries ahead."Monsanto offers an expedient short-cut with enormous long-term risks and consequencesfor public health and environmental degradation, he says; "This, we intend to prove incourt."
"We believe Monsanto has anti-competitively and improperly abused their rights underpatent law and have used their patents to gain monopoly dominance over major sectors ofthe seed industry," said lawyer Ravicher; "They have gained control over as much as90% of the U.S. corn and soybean seed market." Independent research on the safety oftransgenic food has not been permitted because Monsanto has used its patent control toprevent that, Ravicher adds, though he notes some information has begun to emergedespite the tight control exercised. Often the most illuminating research findings havecome from other nations or from U.S. researchers who have retired from positions wherethey were formerly under contractual constraint imposed by Monsanto and other biotechcompanies, Ravicher reports. "The operation of the patent system against the publicinterest will be an important issue to be examined as part of this case," Ravicher affirms;"In arguing the invalidity of Monsanto's Roundup Ready patents, we will show how thePatent and Trademark Office has too readily and even profligately served the interest ofpolitically-influential corporations at the expense of the public."
"The USDA, the White House, and the Congress have evaded responsibility to protectthe public from the potential and unstudied dangers of transgenic food, not even requiringcareful, long-term, independent testing nor the clear GMO labeling long-demanded bythe overwhelming majority of U.S. citizens," states Bryce Stephens, a Kansas wheatfarmer, who is OSGATA's vice-president. "President Obama said he wanted to seemandatory GMO labeling during his 2008 presidential campaign, but he has not providedit," Stephens reminds us. "We need someone to act in the public's defense if our officialswill not," he says, and that is part of the motivation for Stephens's decision to join thecase as an individual plaintiff alongside his participation in plaintiff organizations.
Stephens is also a spokesman for the second leading plaintiff in the case, the Organic
Crop Improvement Association-International (OCIA). He points out, "Long-term, fullyobjective, independent, multi-generational studies about the safety of transgenic food arescarce world-wide and virtually non-existent in the United States; studies have not beendone in the U.S. to replicate, verify, or rebut the findings of studies undertaken in othernations."
"When GMO crops were first given the green light to enter the market in 1992 by theBush-Quayle administration, they were declared 'Generally Recognized As Safe(GRAS)' based almost entirely on internal industry studies and industry-sponsoredresearch done under controlling company contract," Stephens states. "Given the seriouspotential long-term dangers and only minimally and briefly-studied risks, this wasreprehensibly irresponsible, and the government has not shown any more prudence overthe years since 1992," Stephens charges. "With the long-term health consequences ofGMO food yet to be understood and in the absence of objective studies, we have all beeninvoluntarily co-opted into a giant biotech industry experiment," he concludes; "Ourcitizens and the people of the world deserve better than that."
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