A cadre of Canadian and U.S. organic growers and ag groups has filed with a U.S. appeals court to reinstate their case seeking "protection" against seed and ag chem giant Monsanto.
The plaintiffs, represented by lawyer Dan Ravicher of the New York City-based Public Patent Foundation (PUBPAT), filed their notice of appeal Wednesday with the U.S. Court of Appeals, Federal Circuit, after their case was dismissed by a federal judge in Manhattan last month.
"Farmers have the right to protect themselves from being falsely accused of patent infringement by Monsanto before they are contaminated by Monsanto’s transgenic seed," Ravicher said in a release Wednesday.
The original case judge, Naomi Buchwald of the U.S. District Court, Southern District of New York, "erred by denying plaintiffs that right and they have now initiated the process of having her decision reversed," Ravicher said.
PUBPAT said its plaintiffs are "all organic or committed to farming without using genetically engineered seeds, and have no desire to ever farm with Monsanto’s patented (genetically modified seed) technology."
The farmers, PUBPAT said, are "fearful that Monsanto seed will trespass onto their farms and that the resulting contamination of their crops will be viewed by Monsanto as illegal ‘possession’ resulting in patent infringement allegations."
Those "fears," PUBPAT said, "were heightened when Monsanto refused to provide a legally binding covenant not to sue, signalling Monsanto’s intention to maintain their option to sue innocent family farmers in the future."
PUBPAT, in its original suit, wanted Monsanto to "expressly waive any claim for patent infringement it may ever have against our clients and memorialize that waiver by providing a written covenant not to sue."
Monsanto, while not promising a blanket waiver, replied to PUBPAT in a letter that its company policy "has never been, nor will be, to exercise its patent rights where trace amounts of its patented seed or traits are present in a farmer’s fields as a result of inadvertent means."
Buchwald, in her ruling, rejected PUBPAT’s claim that Monsanto had sued farmers who didn’t want to have the company’s genetics in their crops. Not one of the suit’s plaintiffs claimed to have ever been threatened with legal action by Monsanto, she noted.
Buchwald also rejected the plaintiffs’ claim that Monsanto’s statement of its company policy — offered in response to a written request from PUBPAT for a blanket waiver, after the original suit was already filed — was somehow meant to "implicitly threaten" farmers and seed growers who weren’t the company’s customers.
Monsanto’s statement, she ruled, followed "a transparent effort (by the plaintiffs) to create a controversy where none exists."
Canadian plaintiffs named in the appeal include Ottawa-based Canadian Organic Growers; the Peace River Organic Producers Association, at Silver Valley, Alta.; Murray Bast, at Wellesley, Ont.; Mumm’s Sprouting Seeds, at Parkside, Sask.; Quinella Ranch, near Regina; Nature’s Way Farm at Grimshaw, Alta.; and Levke and Peter Eggers Farm at La Glace, Alta.
Three other Canadian plaintiffs who had joined the original suit were not on the list of appellants in Wednesday’s filing. They include Quebec’s Union Paysanne; the Winnipeg-based Manitoba Organic Alliance; and Interlake Forage Seeds, a seed company at Fisher Branch, Man.
U.S. court turfs organic growers’ suit against Monsanto, Feb. 27, 2012
Organic players join "pre-emptive" U.S. suit against Monsanto, April 5, 2011