By Michael Howell -
A local non-profit group, Sustainable Living Systems (SLS), has joined 83 other small farmers, seed businesses and organic agriculture organizations from around the country in a lawsuit challenging Monsanto Company’s patents on transgenic (GMO) seeds.
The case, known as Organic Seed Growers and Trade Association (OGATA) v. Monsanto was originally filed March 29, 2011 in U.S. District Court in the southern District of New York. But an amended complaint, with an additional two dozen plaintiffs, was filed on June I, 2011.
Transgenic seeds are genetically engineered through the introduction of foreign genes and regulatory sequences into the seeds’ genome. The genes of one species are put into the DNA of another. The process of incorporating exogenous DNA into a cell is called transformation. The foreign genetic material, when expressed in transformed organisms, can, for example, immunize the plant against glyphosatebased herbicides, such as RoundUp, a highly toxic glyphosatebased product developed and sold by Monsanto. Monsanto widely markets transgenic seed to the public under the trade name Roundup Ready and sells Roundup Ready seed for corn, canola, soybean, sugar beet, alfalfa and cotton. The company dominates the market for transgenic seeds and traits. It currently holds the largest percentage of the global proprietary seed market of any company. In the United States, Monsanto’s control of the seed market is so high that over 85% to 90% of all soybeans, corn, cotton, sugar beets and canola grown in the U.S. contains Monsanto’s patented genes.
The plaintiffs in the case argue that 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,” the plaintiffs state in their court filings.
The plaintiffs are challenging Monsanto’s patent claims on the genetically altered seeds for a number of reasons, 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 therefore”) (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.
The plaintiffs claim that transgenic seeds also represent a threat to health and force organic and other non-transgenic farmers to go to great expense to try and protect their crops from contamination by transgenic seeds. They claim it is difficult to test for contamination and virtually impossible to do research on its effects due to Monsanto’s patents which allow it to prevent any third party, including public research facilities, from performing research on its transgenic seed without Monsanto’s permission.
To make matters worse, plaintiffs point to a long string of litigation in which Monsanto, after testing crops of independent farmers and determining they contain the patented transgenic material, has charged farmers with patent violations. The plaintiffs are asking the court to prevent Monsanto from charging them with a patent violation if the transgenic material is found in their fields.
Monsanto was notified in April of 2011 by the Public Patent Foundation of the plaintiffs’ concerns and asked to provide a waiver of claims for patent infringement and a covenant not to sue those companies and individuals who are doing everything they can to prevent contamination of their crops but may be contaminated inadvertently from neighboring operations.
In a reply, attorneys for Monsanto wrote, “You represent that ‘none of [your] clients intend to possess, use or sell any transgenic seed potentially covered by Monsanto’s patents.’ Taking your representation as true, any fear of suit or other action is unreasonable, and any decision not to grow certain crops unjustified. As it has previously publicly stated, and restated here, Monsanto policy never has 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.”
Plaintiffs in their amended complaint argue that Monsanto’s assurances are ambiguous so long as the company’s commitment does not define the terms, “trace amounts” and “inadvertent means”. They also claim that it is Monsanto who is trespassing when its transgenic seeds contaminate other fields.
Monsanto, in a public statement, calls the allegations “false, misleading and deceptive.” It claims that biotechnology crops have provided a wealth of benefits to farmers and the environment. It claims these benefits include increased yields and lower production costs. The company claims that transgenic seed operations and organic operations “can coexist side by side and sustainably meet the world’s needs…”
The plaintiffs disagree and have presented studies challenging Monsanto’s claims about higher yields and lower costs and negative health effects.
Jill Davies of SLS said that Monsanto is in the process of buying up small seed companies around the country and discontinuing non-patented seeds. Patented seed customers must sign an agreement with Monsanto not to save any seeds, forcing them to purchase seeds annually and driving up the cost of food.
“The building blocks of life are sacred,” said Davies, “and should be in the public domain. If scientists want to study them and manipulate them for some supposed common good, fine, then we must remove the profit motive. The private profit motive corrupts pure science and increasingly precludes democratic participation.”
Other participants in the litigation from Montana include Dave Christiansen, of Seed We Need, the developer of Painted Mountain Corn and Doug Baty, a seed grower in Dixon.