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What’s At Stake in Monsanto’s Latest Legal Headache

Last month, the Public Patent Foundation (PPF) asked the Supreme Court to hear its case challenging the validity of Monsanto’s seed patents.  If this narrative sounds familiar, that’s because it is; the case again pits the PPF and farmers against the biotech giant much like the Supreme Court case last term, Bowman v. Monsanto. While Bowman addressed critical issues of patent law raised by the self-replicating nature of transgenic seeds, the current petition in Organic Seed Growers and Trade Association et. al. v. Monsanto Company (OSGATA v. Monsanto) presents a relatively mundane issue of standing particular to these litigants.  Though the chances the Court hears the case are slim, the continued litigation is certainly a savvy part of the strategy by both the Public Patent Foundation and the organic food movement to fan public animosity towards Monsanto, biotechnology patents, and discredit the safety and public benefit of genetically modified crops.

The Case History

The plaintiffs in OSGATA v. Monsanto are a group of farmers, seed businesses, and other organizations engaged in organic and non-organic farming, but united in their determination to avoid the use of transgenic seeds and specifically the “Round-up Ready” seeds covered by numerous Monsanto patents.  Fearing Monsanto’s “aggressive” pursuit of patent infringers, the plaintiffs preemptively sued Monsanto to protect themselves from any inadvertent infringement of Monsanto’s patents should their seeds and crops become contaminated by Round-up Ready seeds. Even Monsanto concedes that some contamination through cross-pollination is inevitable. Accordingly, plaintiffs filed a complaint in March of 2011 in the Southern District of New York seeking a declaratory judgment to invalidate twenty three of Monsanto’s patents, which they alleged were preventing them from growing a variety of crops due to the fear of being sued by Monsanto for the discovery of contaminated seeds or crops.  According to court filings, the plaintiffs followed the complaint with a letter to Monsanto asking for a written covenant not to sue should any contamination be discovered in the future.  Monsanto refused the request and cited its own published policy to never “exercise its patent rights where trace amounts of our patented seeds or traits are present in farmer’s fields as a result of inadvertent means.”  Judge Buchwald sided with Monsanto and dismissed the case for lack of controversy and further added that the plaintiffs’ request for a covenant was “clearly intended to be used as a prop in this litigation.”

Nevertheless, the Federal Court of Appeals heard the case, concluding that “trace amounts” were equivalent to one percent of the seed, and Monsanto’s representations not to sue for contamination at those levels were “binding as a matter of judicial estoppel.” The court did acknowledge the limited scope of Monsanto’s disclaimer, but because the plaintiffs had no evidence that they had or would experience contamination at levels greater than one percent, there remained a lack of case or controversy.  The court concluded that the future harms (such as possibly foregoing farming or seed distribution due to contamination issues) was too speculative to constitute a case or controversy.  The court also addressed the plaintiff’s bizarre legal argument that a declaratory judgment invalidating Roundup Ready patents was necessary to address the harmful health, environmental and economic effects resulting from exposure to genetically modified seeds present in contaminated seeds.  None of these alleged concerns could necessarily be traced to contaminated seeds—a fact the plaintiffs conceded—and certainly “could not be remedied by a declaratory judgment.” So why did PPF make an unsubstantiated tangential argument that lends no force to legal arguments for establishing an actual case or controversy? The answer may be simple: regardless of the legal outcome of the case, OSGATA wins simply by sowing more public doubt on genetically modified organisms (GMOs) and transgenic crops.

Discrediting GMOs: The Real Issue at Stake?

Even without a legal controversy, the plaintiffs may just as effectively advance their position of discrediting Monsanto and genetically modified crops simply by generating controversy in the media.  The controversy certainly comes at a peak in anti-GMO fervor from the release of “GMO OMG”, an activist documentary described by The New Yorker’s science correspondent, Michael Specter, as “aggressively uninformed” to the August 8, 2013 destruction of fields of Golden Rice in the Philippines by organized protestors.  Golden Rice, a form of rice that has been genetically modified to contain vitamin A, was developed to combat vitamin A deficiency, a condition suffered by 90 million children in Southeast Asia alone and which blinds around 350,000 children globally every year.  The Golden Rice incident may turn out to be a crystallizing moment for the scientific community in combating anti-GMO misinformation.  An  editorial by a panel of highly distinguished scientists, including several Nobel Laureates, former University presidents and former presidents of both the US National Academy of Sciences as well as the Royal Society, decried the “electronic gossip and well-organized fear-mongering” sponsored by individuals and organizations like Greenpeace which continue to fuel the anti-GMO movement.  Michael Purugganan, the dean for science at New York University told The New York Times, “There’s so much misinformation about GMOs that is taken as fact by people. . .  A lot of the criticism . . . suffers from a lack of understanding of how really dire the situation is in the developing world.”   In fact, organizations like the Bill and Melinda Gates Foundation are actively funding research to create other genetically enhanced crops like cassava that may combat malnutrition in parts of Africa to the consternation of anti-GMO activists.

But fear-mongering in the US may be just as detrimental to the adoption of GMOs as the physical destruction of fields in the Philippines.  The Scientific American warned that the current spate of GMO-labeling legislation pending in twenty states was essentially about “deciding whether we will continue to develop an immensely beneficial technology or shun it based on unfounded fears.” The American Academy of Sciences describes the GMO-labeling movement in the US as driven by factors “from the persistent perception that such foods are ‘unnatural’ and potentially dangerous to the desire to gain competitive advantage by legislating attachment of a label meant to alarm.”  A recent exhaustive review of ten years worth of studies on GMOs supports the scientific community’s consensus: GMOs are safe.  Interestingly, the authors found that normal scientific debate had “frequently been distorted by the media and often used politically and inappropriately in anti-[GMO] crops campaigns.”

Judicial opinions and proceedings may likewise be manipulated to serve media purposes.  The PPF’s press release accompanying its September 5, 2013 petition to the Supreme Court contains a litany of specious claims (super insects) and false and inflammatory statements (transgenic seeds “threaten to poison people”).  What standing it does not have in the courts, the organization has certainly acquired in the minds of the public.  As emotionally appealing as the narrative of small farmer versus giant corporation may be, it is predicated on a mountain of misinformation regarding genetically modified crops.  Unlike Europe, where repeated attempts to correct public fear and misperceptions on GMOs have continually failed, the US is currently able to utilize these technologies “that have the potential to save millions of impoverished fellow humans from needless suffering and death.”  But trumped up cases like OSGATA v. Monsanto pose a threat to the public awareness that is needed to continue to provide a  supportive environment for biotechnology.

About the Author

Miling Harrington

Miling Harrington is a Staffer for the Columbia Science and Technology Law Review. She is a 2L at Columbia Law School.
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