U.S. organic seed growers find friends in their fight against self-replicating GM technology

In the matter of ORGANIC SEED GROWERS AND TRADE ASSOCIATION, et al v MONSANTO COMPANY AND MONSANTO TECHNOLOGY LLC; the summary from the amicus brief lodged by Farm and Ranch Freedom Alliance, Biodynamic Farming and Gardening Association, Carolina Farm Stewardship Association, Ecological Famers of Ontario, Fair Food Matters, International Organic Inspectors Association, Michigan Land Trustees, Natural Environment Ecological Management, Nebraska Sustainable Agriculture Association, Organic Council of Ontario, Slow Food USA, and Virginia Independent Consumers and Farmers Association.

Case 1:11-cv-02163-NRB Document 39 Filed 08/10/11 Page 9 of 23

SUMMARY

Monsanto has a track record of aggressive enforcement of its patent rights. Monsanto has sued or settled with hundreds of farmers, and investigated unknown numbers more. Because of the nature of Monsanto’s patented seeds, the individual Plaintiffs and the farmer members of Plaintiff organizations (hereinafter collectively “Plaintiff farmers”) cannot avoid infringing on Monsanto’s patents unless they entirely abandon growing corn, soybeans, canola, cotton, sugar beets, and, as of this year, alfalfa. While Monsanto tries to downplay the threat of enforcement by pointing to its “commitment” not to sue farmers for “trace” infringement, this provides no enforceable protections for Plaintiffs. Because of the nature of the patented seeds and the realities of farming, it is certain that at least some of the Plaintiff farmers already have more than trace contamination, and the number of such affected farmers will only grow over time. While many of the Plaintiff farmers are certified organic, not all are, so the simple fact that Monsanto has yet to sue a certified organic farmer has no impact on their standing.

Not only does Monsanto’s patented technology inevitably lead to infringement through no fault of the Plaintiffs, but, by their design, the majority of Monsanto’s patented crops only

provide the alleged benefits if a farmer applies herbicides, specifically Roundup®, directly to the crop. Monsanto could easily protect its patent rights by agreeing not to sue for unintentional contamination absent an affirmative action by the farmer to make use of the patented traits. By failing to do so, and instead offering an ambiguous and ultimately meaningless commitment, Monsanto has made it clear that it intends to maintain the threat of patent infringement lawsuits against Plaintiff farmers and those similarly situated.

Plaintiff farmers have, by the simple act of farming corn, soybeans, canola, cotton, sugar beets, or alfalfa crops, undertaken meaningful steps towards infringement. Due to Monsanto’s

decision to release patented seeds and market them for widespread planting, it is now impossible for farmers to remain 100% free of genetically modified crops because of the multitude of ways that contamination can occur.

Given the difficulties in minimizing GM contamination, farmers must make numerous decisions about which steps are worthwhile for them and which steps are not. They are not able

to make these decisions based on their own and their customers’ interests, but must instead make these decisions with the threat of litigation against a giant corporation looming over their heads. The constant threat of a patent infringement suit by Monsanto creates significant, unquantifiable costs for the Plaintiff farmers and similarly situated farmers. Unless this Court allows this case to proceed, the Plaintiff farmers will face the choice of abandoning growing such crops or risking prosecution whenever Monsanto chooses.

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