The matter of Organic Seed Growers & Trade Association, et al. v. Monsanto, filed in the United States District Court for the Southern District of New York (Manhattan) on 29 March 2011, should get interesting as a jury has been demanded to hear arguments in part predicated on the assertion that Monsanto & Co do not hold valid patents on genetically modified seed.
Opening remarks in the application:
1. Society stands on the precipice of forever being bound to transgenic agriculture and transgenic food.1 Coexistence between transgenic seed and organic seed is impossible because transgenic seed contaminates and eventually overcomes organic seed. History has already shown this, as soon after transgenic seed for canola was introduced, organic canola became virtually extinct as a result of transgenic seed contamination. Organic corn, soybean, cotton, sugar beet and alfalfa now face the same fate, as transgenic seed has been released for each of those crops, too. And transgenic seed is being developed for many other crops, thus putting the future of all food, and indeed all agriculture, at stake.
2. Plaintiffs in this matter represent farmers and seed businesses who do not want to use or sell transgenic seed. Plaintiffs are largely organic farmers and organic seed businesses, but also include nonorganic farmers who nonetheless wish to farm without transgenic seed. Plaintiffs are increasingly being threatened by transgenic seed contamination despite using their best efforts to avoid it. This causes Plaintiffs to fear that, if they do indeed become contaminated by transgenic seed, which may very well be inevitable given the proliferation of transgenic seed today, they could quite perversely also be accused of patent infringement by the company responsible for the transgenic seed that contaminates them. Thus, Plaintiffs bring this action to protect themselves from ever being accused of infringing patents on transgenic seed.
3. Monsanto is a chemical company that was previously responsible for introducing to the world Agent Orange, DDT, PCB's and other toxins. Monsanto is now the world's leading proponent of transgenic seed and holds many patents relating thereto that it has aggressively asserted against literally hundreds of farmers, including those farmers who became contaminated by Monsanto's transgenic seed through no fault of their own. Public awareness of Monsanto's patent assertion activities is high and it contributes mightily to Plaintiffs' fears that they, too, could most assuredly be accused of patent infringement in the near future if and when they become contaminated by Monsanto's transgenic seed.
4. Through this action, Plaintiffs ask the Court to declare that, should they ever be contaminated by Monsanto's transgenic seed, they need not fear being sued for patent infringement. As set forth below, there are several legal bases for this declaration, the principal one of which is that patents on transgenic seed fail to satisfy the requirement of both the Constitution and the Patent Act that only technology with a beneficial societal use may be patented. U. S. Const., Art. I, § 8, cl. 8 (“To promote the Progress of Science and useful Arts”) (emphasis added); 35 U.S.C. § 101 (“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor”) (emphasis added). As Justice Story wrote in 1817, to be patentable, an invention must not be “injurious to the wellbeing, good policy, or sound morals of society,” and “a new invention to poison people ... is not a patentable invention.” Lowell v. Lewis,15 F. Cas. 1018 (C.C.D. Mass. 1817). Because transgenic seed, and in particular Monsanto's transgenic seed, is “injurious to the wellbeing, good policy, or sound morals of society” and threatens to “poison people,” Monsanto's transgenic seed patents are all invalid.
5. Monsanto's patents are additionally invalid for other failures to meet the requirements of patent law, including that each violates the prohibition against double patenting, each is anticipated or rendered obvious by prior art, and each fails to satisfy the requirements of written description, enablement and best mode. Monsanto's patents would also not be infringed by Plaintiffs because, amongst other things, Plaintiffs do not intend to use Monsanto's transgenic seed, any seed possessed by Plaintiffs that may be contaminated by Monsanto's transgenic seed is not covered by any valid and properly construed claim of any patent in suit, and Monsanto's patents rights in transgenic seed exhaust upon the authorized distribution by Monsanto to its customers. Monsanto's patents are also unenforceable because, among other things, Monsanto has committed misuse, Monsanto is equitably estopped from enforcing them, and Monsanto commits trespass when its transgenic seed contaminates another. Lastly, Monsanto would not be entitled to any remedy under law or equity even if its patents were held to be valid, infringed and enforceable against Plaintiffs, as no economic injury happens to Monsanto and the public interest would not support granting Monsanto an injunction when its patented seed contaminates another…..
The plaintiffs in the suit represented by the Public Patent Foundation (PUBPAT) are: Organic Seed Growers and Trade Association; Organic Crop Improvement Association International, Inc.; OCIA Research and Education Inc.; The Cornucopia Institute; Demeter Association, Inc.; Navdanya International; Maine Organic Farmers and Gardeners Association; Northeast Organic Farming Association/Massachusetts Chapter, Inc.; Northeast Organic Farming Association of Vermont; Rural Vermont; Ohio Ecological Food & Farm Association; Southeast Iowa Organic Association; Northern Plains Sustainable Agriculture Society; Mendocino Organic Network; Northeast Organic Dairy Producers Alliance; Canadian Organic Growers; Family Farmer Seed Cooperative; Sustainable Living Systems; Global Organic Alliance; Food Democracy Now!; Family Farm Defenders Inc.; Farm-to-Consumer Legal Defense Fund; FEDCO Seeds Inc.; Adaptive Seeds, LLC; Sow True Seed; Southern Exposure Seed Exchange; Mumm's Sprouting Seeds; Baker Creek Heirloom Seed Co., LLC; Comstock, Ferre & Co., LLC; Seedkeepers, LLC; Siskiyou Seeds; Countryside Organics; Cuatro Puertas; Interlake Forage Seeds Ltd.; Alba Ranch; Wild Plum Farm; Gratitude Gardens; Richard Everett Farm, LLC; Philadelphia Community Farm, Inc; Genesis Farm; Chispas Farms LLC; Kirschenmann Family Farms Inc.; Midheaven Farms; Koskan Farms; California Cloverleaf Farms; North Outback Farm; Taylor Farms, Inc.; Jardin del Alma; Ron Gargasz Organic Farms; Abundant Acres; T & D Willey Farms; Quinella Ranch; Nature's Way Farm Ltd.; Levke and Peter Eggers Farm; Frey Vineyards, Ltd.; Bryce Stephens; Chuck Noble; LaRhea Pepper; Paul Romero; and, Donald Wright Patterson, Jr.
On the day of filing Monsanto hit out in its official online blog, Beyond the Rows. Describing PUBPAT’s application as containing many allegations which are false, misleading and deceptive and stating that the plaintiffs’ approach is a publicity stunt designed to confuse the facts about American agriculture.
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