Saturday, June 4, 2011

Organic farmers expand suit

Organic farmers expand lawsuit against Monsanto
By Heidi Ledford
June 03, 2011

An ambitious lawsuit against the agricultural firm Monsanto got a little bigger this week, and a lawyer for the plaintiffs hopes that this is only the beginning.

The case was initially filed in March by the Public Patent Foundation (PubPat), a non-profit legal services organization based at the Benjamin N. Cardozo School of Law in New York, on behalf of 60 organic farmers and associated organizations. The farmers want assurance from Monsanto that they will not be sued for patent infringement if their farms become contaminated with the company’s genetically modified crops.

On 1 June, PubPat announced that the list of plaintiffs had grown to 83, and that the original complaint had been amended to include a recent exchange with Monsanto’s lawyers. In a letter written on behalf of Monsanto, Seth Waxman, former solicitor general under Bill Clinton and a partner at the law firm WilmerHale in Washington, DC, said Monsanto has no intention of suing the farmers for patent infringement. “Monsanto policy never has been, nor will be, to exercise its patent rights where trace amounts of its patented seed or traits are present in a farmer’s fields as a result of inadvertent means,” he wrote, echoing a statement Monsanto has also made on its website.

But rather than placating PubPat, executive director Daniel Ravicher says he saw a veiled threat in the statement’s ambiguity. Farmers whose crops contain more than a “trace” — whatever that means — of contamination are still vulnerable to action by Monsanto, he argues. Instead, Ravicher wants a legally binding declaration that Monsanto will not sue his clients for patent infringement.

Monsanto could not be reached for comment, but has stated on its website that it views the PubPat lawsuit as a publicity stunt. Ravicher, meanwhile, says he hopes that the lawsuit will have ramifications for future legal cases against the company.

During the ‘discovery’ phase of the lawsuit, when both sides exchange evidence, Ravicher aims to compel Monsanto to hand over confidential data and email exchanges pertaining to in-house research involving its genetically modified crops. Ravicher’s team will parse through the data they collect, likely this fall or winter, looking for any new information about the environmental impact of genetically modified crops.

And if the farmers win this lawsuit, Ravicher says it will free them to pursue future cases against the company without the threat of retribution. If a farmer were to sue Monsanto now for promulgating genetically modified crops that contaminate organic farms, for example, the suit would be tantamount to admitting that the farms are growing, however unwillingly, unlicensed Monsanto crops. Under the current system, Ravicher says such an admission would leave the farmers vulnerable to accusations of patent infringement.

Changing that system depends on whether PubPat’s case succeeds. PubPat will try to convince the judge
that Monsanto’s patent claims on its genetically modified crops are invalid because the crops do not provide a ‘beneficial societal use’. One could imagine Monsanto countering that at least a few of the 15 million farmers who have planted its transgenic crops likely believed the crops to be beneficial.

But the organic farmers could also win their case if they can convince the court that the patents are unenforceable because a farmer cannot stop the wind and insects from carrying seed and pollen from neighbouring fields containing, for example, transgenic canola plants (pictured above).

It may also be wise not to dismiss PubPat too readily these days. In 2009, the organization joined the American Civil Liberties Union and other groups to launch a lawsuit over gene patents that also seemed unlikely to succeed. But a New York district judge ruled in their favour on some counts, and the now famous lawsuit against Myriad Genetics, currently under appeal, sent ripples through the biotechnology industry.

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