The seed giant has spent years going after anyone who plants its crops illegally—but now it has to defend itself in court
Michael Doane, Monsanto's wheat industry affairs director, examines a wheat field in North Dakota. Carey Gillam/Reuters
Tearing a page out of Monsanto's own playbook, the Public Patent Foundation (PUBPAT), an advocacy group whose mandate is to represent the public's interest in the patent system, filed suit (PDF) on behalf of 60 organic farmers, small farm organizations, and seed businesses this week against the litigious agrichemical and genetically modified (GM) seed giant.
In a press release, PUBPAT said, "The organic plaintiffs were forced to sue preemptively to protect themselves from being accused of patent infringement should their crops ever become contaminated by Monsanto's genetically modified seed." PUBPAT is asking the federal court in Manhattan to declare that if organic farmers' crops are ever contaminated by Monsanto's GM seed, they need not fear also being accused of patent infringement.
One of the ludicrous ironies of the United States patent system is that Monsanto essentially owns the genes in its crops. If those genes are found in plants on a farmer's property, and he has not purchased the seed from Monsanto, he can be sued for infringing Monsanto's patent—even if the genes got on his land through natural cross pollination or spread there accidentally from neighboring fields, and even if (as is the case of organic farmers who are prohibited from selling GM crops) he did not want the Monsanto plants on his land and stood to suffer financial harm as a result of their presence.
This is far from a hypothetical situation. Monsanto has frequently sued farmers who inadvertently had its GM crops growing on their land. "It seems quite perverse that an organic farmer contaminated by transgenic seed could be accused of patent infringement, but Monsanto has made such accusations before and is notorious for having sued hundreds of farmers for patent infringement, so we had to act to protect the interests of our clients," said Dan Ravicher, PUBPAT's executive director.
If you are not familiar with Percy Schmeiser vs. Monsanto and want to see how such cases play out, you owe it to yourself to spend a few minutes on http://www.percyschmeiser.com/. Schmeiser was an elderly canola farmer in Saskatchewan who for 50 years had carefully saved seeds from his own fields, replanting those that carried the specific traits he sought. He had never bought seeds from Monsanto; never even spoken to a representative of Monsanto. Somehow, his crops became contaminated by Monsanto's GM crops, either through drift from nearby fields or from the trucks loaded with GM canola seed—often without protective covers to prevent seed from blowing off—speeding along a road bordering his property. The result was that Schmeiser lost the strains of canola he had created over five decades of seed saving. Monsanto promptly sued Schmeiser, saying he owed the company over $200,000 because its patented genetic material was growing on his land. Schmeiser spent his retirement savings defending himself, but the Canadian Supreme Court ruled in Monsanto's favor, even though it did not grant the company monetary damages.
The PUBPAT suit comes at a crucial time for small and organic farmers and their advocates. Despite ongoing court challenges, the Obama administration has recently pushed through approval of GM alfalfa and sugar beets. Both crops can easily cross contaminate with non-GM plants. Alfalfa's pollen is carried by the wind and can travel distances of up to five miles. Most sugar beet seed—GM and conventional—is grown in a small area in Oregon in plots adjacent to where conventional and organic table beet and chard seed is also produced.
The plaintiffs, who represent over 270,000 individuals, hope that the courts will step in where the government has failed to act. "Monsanto and the biotechnology industry have made great investments in our executive and legislative branches through campaign contributions and powerful lobbyists in Washington," said Mark Kastel of the Cornucopia Institute, an advocate for small, organic farms, and one of the plaintiffs. "Family-scale farmers desperately need the judiciary branch of our government to balance the power Monsanto is able to wield."