Patents, GMO Seeds, and a History Lesson at NOFA

By Allison Weinhagen, Director of Member Services

I read a headline earlier this week that surprised me, given what I had learned at last month's NOFA-VT Winter Conference at UVM. A federal judge had dismissed the case of Organic Seed Growers and Trade Association et al v. Monsanto. According to the plaintiff's lead attorney, Daniel Ravicher, they may appeal the ruling.

Flash back to mid-February and the NOFA-VT Winter Conference. I had selected a Saturday session entitled “Organic Seed v. Monsanto: The Lawsuit Challenging Patents on Seed” not sure what to expect. I’d read several emails from Full Moon farmers Rachel Nevitt and David Zuckerman about their part in the lawsuit and their recent trip to New York. But I didn’t have a real feel for what the lawsuit was about or the history behind it, other than what I had watched in movies like Food, Inc.

Dan Ravicher, the session's presenter as well as the plaintiff’s lead attorney on the case, is the President and Executive Director of the Public Patent Foundation and a Lecturer in Law at the Benjamin N. Cardozo School of Law in New York. His presentation at NOFA illuminated the history of patent law, the deficiencies that he sees in the current patent system, as well as the case against Monsanto. Frankly, his engaging style of perhaps an otherwise wonky topic made me wish I could push the redo button and give law school a try.

So the long and short of it is that Professor Ravicher is working with a group of plaintiffs, including 33 farmers, 14 seed companies and 36 organizations (like NOFA-VT, on behalf of their members). The case, Organic Seed Growers & Trade Association, et al. v. Monsanto, was filed in federal district court in Manhattan on March 29, 2011. Why a patent attorney for this case? Ravicher explained that Monsanto sells genetically modified seeds for various crops and they claim patents on these seeds. Basically, Monsanto has taken some genes from different species with characteristics that they find desirable and spliced them into the DNA of a foreign species. While it happens in nature all the time, Monsanto splices in order to create seeds that aren’t killed by their line of herbicides. Monsanto then marks their bags with a stop sign image and patent information on the back. Basically, these indicate that opening the bag is your acceptance of the license that goes with their patents. In general, this means that you cannot replant or redistribute seeds and can only use the seeds for one season. According to Ravicher, Monsanto has filed over 140 lawsuits for using their technology without having paid for it or for violating their licensing agreements and patents.

So, that’s why a patent attorney is heading this case. But why, you may ask, are these 83 plaintiffs suing Monsanto when the plaintiffs have no intention of using GMO seed? Ravicher eloquently explained the history behind the Declaratory Judgment Act (DCA). Basically, plaintiffs can go to court first to preemptively strike. The DCA, distilled down to its simplest parts, which sounded a bit cynical pre-explanation, is that you can sue someone before they sue you and get a judgment declaring that they no longer have a right to sue you. Ravicher used a car manufacturer as an example. Say a car manufacturer wants to move into the neighborhood (zoned appropriately, of course). If the car manufacturer that’s already there gives the impression that he’s going to sue to keep the competition out, the new manufacturer can use the Declaratory Judgment Act and hope for a ruling that would allow him to make an investment in a new plant without fear of reprisal or lawsuits from the existing manufacturer.

In the declaratory judgment action Ravicher filed, Monsanto basically argued that they had never heard of the plaintiffs and therefore had no reason to sue them. Ravicher and the plaintiffs claimed that Monsanto’s history tells a different story. In this particular case, the federal judge agreed with Monsanto and approved their motion to dismiss the case.

Using the DCA, Ravicher indicated during his NOFA presentation that he hoped to make four arguments in this case. First, the Monsanto patents are invalid. According to Ravicher, the social utility requirement of patents indicates that an invention that’s harmful to society is not patentable. Ravicher would argue that Monsanto’s patents fall into this category. Second, even if the judge does not agree that the patents are invalid (through the first argument), the plaintiffs couldn’t infringe the patents as the cross-contaminated seed that may end up in their fields is not the same seed that was created by Monsanto. Third, even if the patents are valid and there has been infringement, there’s no remedy. The farmers’ wouldn’t intentionally use the Monsanto seed so there’s no way to enforce them to stop with an injunction. And there’s no cash remedy for an infringement. Monsanto hasn’t lost any sales because there were no sales to begin with (since it’s a cross-contamination concern). In general, if there was any economic harm, it would most likely be to the farmers who may be unintentionally growing GMO-contaminated crops, oftentimes on their certified organic farms. Finally, the fourth argument is that the patents are unenforceable. Ravicher would argue that Monsanto misled or attempted to mislead the patent office during the application process. This conduct would lead to an unenforceable patent. In addition, Ravicher indicates that a patent owner using their patents to gain or maintain a competitive advantage in the marketplace can render those patents unenforceable.

That in a nutshell is the four argument approach that Ravicher hopes to make should the plaintiffs overcome the dismissal at appeal. The arguments nest like an embedded “if, then” statement in an Excel formula. If you find the patents invalid, find for the plaintiffs. Else, there’s been no infringement anyway because the seed is different from the original. Else, there’s no remedy so Monsanto can’t sue the plaintiffs. Else, the patents are unenforceable. Ravicher would be pleased to win on any or all of these arguments, but invalidating the patents would certainly have much farther reaching implications than agreement with some of the other arguments.

While this article may feel less timely now that the federal judge has dismissed the case, the information as presented by Ravicher is still illuminating. I read a comment from a generally knowledgeable online grocery retail source just last week, Kevin Coupe of Morning News Beat.com. He wrote, “Not being a lawyer, I have no idea whether this ruling makes sense, though I can accept the notion that a lawsuit designed to stop a company from filing a lawsuit that it never has filed doesn’t exactly sound logical.” I imagine many folks feel the same way and I think that Ravicher’s history lesson at NOFA was exactly what I needed to understand why the original lawsuit was logical. We’ll have to wait and see how the appeal process plays out; perhaps Ravicher will get a chance to make the plaintiffs’ case in court after all.