On June 10, 2013, the Federal Circuit Court affirmed the Southern District of New York’s decision that Plaintiffs did not bring forth a justiciable case or controversy in Organic Seed Growers and Trade v. Monsanto Co. Plaintiffs (a coalition of farmers, seed sellers, and agricultural organizations) brought suit in March, 2011, wanting declaratory judgments that specific Monsanto patents on transgenic seeds are invalid, unenforceable, and infringed. Plaintiffs alleged that they were not able to organically grow corn, cotton, canola, sugar beets, soybeans and alfalfa because they were threatened by transgenic cross-pollination and that preventing cross-pollination with transgenic crops was costly to their businesses. Plaintiffs wanted Monsanto to waive any future claim for patent infringement and memorialize the waiver by signing a covenant not to sue. In response, Monsanto referred Plaintiffs to its website where it expresses that Monsanto’s policy has never been to exercise its patent rights where trace amounts of patented traits are present as a result of inadvertent means. Monsanto claimed that since Plaintiffs do not intend to ever possess, use, or sell any transgenic seed, fear of suit is unreasonable. On appeal, the court found that Monsanto’s representations on its website and throughout the litigation are binding as a matter of judiciary estoppel and have the same effect as signing a covenant not to sue, so long as cross-pollination does not occur at levels higher than one percent and is inadvertent.
Plaintiffs also claimed that Monsanto’s refusal to sign a covenant not to sue has a chilling effect on farming or seed distribution activities they would like to pursue, and further, they cite a number of alleged potential harms due to health and safety, environmental, and economic issues. The court determined, however, that none of the alleged potential harms caused by cross-pollination can be remedied by declaratory judgment and cannot serve as a basis for jurisdiction. The court concluded that Plaintiffs failed to show any risk of suit and, therefore, lack standing.
The docket number for this case is 2012-1298.
Written By Sarah Doyle – Research AssistantThe Agricultural Law Resource and Reference Center
June 14, 2013