Monsanto and the Organic Farmers

Monsanto has won another patent case in the Federal Circuit, but this time, it was against organic seed farmers.  The organic farmers wanted a declaratory judgment to safeguard them from future patent infringement claims from Monsanto.

The court found that the organic farmers had no standing in the case because, as long as the farmers did not take active steps to infringe on Monsanto’s patents, no threat of infringement suits existed.

The organic farmers’ main concern stems from a previous attempt to have Monsanto sign a covenant not to sue organic farmers.  Without this covenant, the organic farmers were afraid to plant soy, corn, and similar produce that were likely to become contaminated with transgenic seeds from their neighbor’s farms.  Monsanto refused to sign the agreement and assured the organic farmers that they would not be in danger of a patent infringement suit if they did not “intend to possess, use or sell any transgenic seed, including any transgenic seed potentially covered by Monsanto’s patents.”

The court began the standing analysis by stating that “Article III jurisdiction may be met where the patentee takes a position that puts the declaratory judgment plaintiff in the position of either pursuing arguably illegal behavior or abandoning that which he claims a right to do.”  Thus, the main question was whether there was a “substantial risk” that the harm would occur, which may prompt the organic farmers to reasonably incur costs to mitigate or avoid that harm.

Although Monsanto has a history of suing farmers for patent infringement (144 suits between 1997 and 2010, and 700 settlements), the court found that Monsanto “unequivocally” disclaimed any intent to sue farmers whose crops “inadvertently” contained traces of Monsanto’s seeds.  Because Monsanto argued this disclaimer to defeat the organic farmers’ declaratory judgment claims, Monsanto was judicially estopped from later adopting a contrary position in a patent infringement suit regarding the same patents.  None of the organic farmers were found outside of the scope of Monsanto’s disclaimer, and the steps the organic farmers took to ensure their crops were not contaminated were based on speculation.  Therefore, none had a “substantial risk” that harm would occur which may prompt the organic farmers to reasonably incur costs to mitigate or avoid a suit.

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