Fedco Joins Lawsuit against Monsanto (2011)

See article for background on Fedco dropping Monsanto products here.

In November 2011 our staff and Board voted unanimously to join a lawsuit against Monsanto filed by The Public Patent Foundation (PUBPAT), a not-for-profit legal services organization affiliated with the Benjamin N. Cardozo School of Law in New York. With Monsanto responding by engaging the prestigious Washington law firm of WilmerHale (their chief counsel on this case, Seth P. Waxman, served as Solicitor General under President Clinton) we anticipated a legal battle of great potential significance.

Fedco joined 82 co-plaintiffs, encompassing a broad range of agricultural organizations, seed businesses, organic certifiers, family farmers and seed growers who could potentially be damaged by the uncontrolled spread of transgenic seeds and their unchecked potential to contaminate conventional and organic seed crops. None of the plaintiffs wishes to use or sell transgenic seed. Ironically, plaintiffs fear “that if they do indeed become contaminated by transgenic seed, they could quite perversely also be accused of patent infringement by the company responsible for the transgenic seed that contaminated them.” Courts have in the past ruled that even adventitious presence of transgenes violates Monsanto’s patents (Percy Schmeiser case).

Among co-plaintiffs are our friends at MOFGA, OEFFA, all but one of the seven state NOFA chapters, The Center for Food Safety, at least eight seed growers and seed companies with whom we collaborate, and several of our farm customers.

The lawsuit seeks to invalidate 23 of the gene giant’s transgenic patents on the grounds that they lack beneficial social utility and original art. It asks the court, even if it finds the patents valid, to enjoin Monsanto from enforcing them on plaintiffs who are inadvertently contaminated by Monsanto’s genetics. The complaint states that between 1997 and 2010, Monsanto filed “144 lawsuits against farmers in at least 27 different states for alleged infringement of its transgenic seed patents” and investigated and threatened hundreds more, including some who never purchased Monsanto’s seeds, signed their technology-use agreements, or ever intended or wanted transgenic genes on their property.

Getting right to the point it begins, “Society stands on the precipice of forever being bound to transgenic* agriculture and transgenic food. Coexistence between transgenic seed and organic seed is impossible because transgenic seed contaminates and eventually overcomes organic seed.” Indeed, we would go further and assert that transgenic seed eventually contaminates and overcomes all other seed, conventional as well as organic.

The largest human-instigated biological experiment in history, transgenic technology is without controls or boundaries. Most participants are unwitting, having been drafted without their consent. No fence can be built high enough to keep out unwanted biological pollution, no geographic boundary can stop it. Because it multiplies at will, it cannot be contained. No long-term tests have been performed to assess its safety for humans, no labels have been required to permit an audit trail that could monitor its effects.

By posing the question: Given the increasing ubiquity of transgenic technology, who pays when something goes wrong as it inevitably will?, this lawsuit could help level the economic playing field for us all. It represents our last best chance to build a metaphoric fence to protect at least the economic interests of those of us who eschew the technology. Until now, the law regarding transgenics has been upside-down, representing the interests of its corporate originators without protecting those who are trespassed by it. This lawsuit could restore the traditional common-law right of freedom from trespass and place the economic responsibility back where it belongs: on the trespassers. As such, it is profoundly conservative in all the good connotations of that word.

If we win on the issues of applicability and enforceability of the patents in cases of unwanted genetic drift, none of the 83 co-plaintiffs will ever be sued for adventitious presence, and it will set a precedent that applies to all others in a similar fix. That might not end the threat of transgenics, but it would be a New Deal, indeed!

The suit is being tried as OSGATA et. al. V. Monsanto in US District Court, Southern District of New York, Judge Naomi Reice Buchwald presiding. The case is likely to take several years as we are now only in the beginning phase of preliminary motions. We will keep you posted as it develops.

See also https://fedcoseeds.com/seeds/monsanto.htm, our definitive 2006 statement on why we do not purchase seed from Monsanto or any of its subsidiaries.
-CR Lawn