GMO patent controversy 3: Does Monsanto sue farmers for inadvertent GMO ‘contamination’?

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This is the third and final post in a series examining the topic of GMOs and patents.

  • The first post provided an overview on the topic of patents and described the concept of “terminator genes”.
  • The second post examined lawsuits against farmers for using genetically modified seeds, focusing on two high profile cases (Schmeider v Monsanto, and Bowman v Monsanto).
  • This final post will examine whether there have been cases of lawsuits brought against farmers for unknowingly using GE seeds or inadvertent contamination

This paragraph from the previous post in the series must be repeated here: “Most of this article will focus on Monsanto, primarily because it has been the target of many activist efforts (I have yet to see a March Against Syngenta). As you may know, the commonly repeated myth is that Monsanto has taken hundreds of farmers to court for inadvertent contamination or for replanting GE seeds. f0117a71fbad9c2084eb512577917d36According to the company’s website, there have been ‘147 lawsuits filed since 1997 in the United States [and none for inadvertent contamination]. This averages about 8 per year for the past 18 years. To date, only nine cases have gone through full trial. In every one of these instances, the jury or court decided in our favor.’”

To determine if any of these cases was unfairly brought against a farmer (inadvertent contamination or unknowingly using GE seeds), I would have had to review each of these cases. However, I came across a story that had done all the work for me: a 2013 court case, known as OSGATA vs Monsanto.

Organic Seed Growers and Trade Association et al. v. Monsanto Company

Most of the information from this section is from the United States Court of Appeals for the Federal Circuit court documents.

The 2 pages of appellants in the lawsuit in the OSGATA case

The 2 pages of appellants in the lawsuit in the OSGATA case

In 2013, a coalition of organic farmers, seed distributors and anti-GMO organizations, including names such as the Center for Food Safety, Food Democracy Now!, and the Cornucopia Institute, joined forces and took Monsanto to court to invalidate 23 of the company’s patents, particularly surrounding Round-Up Ready seeds. The case is known as OSGATA v Monsanto. The case’s background states that these groups do not want to use/sell transgenic seeds or glyphosate. However, their concern is that if they do become contaminated they could “be accused of patent infringement by the company responsible for the transgenic seed that contaminates them”.

The intro to the court document explains that in 2011, Organic seed growers went before a judge in the Southern District of New York asking that the patents be judged “invalid, unenforceable, and not infringed”. They claimed that they had started growing conventional produce since the threat of contamination from GMO was so high. They had to take expensive precautions such as creating a buffer zone, so that they wouldn’t be sued by Monsanto. One grower testified to the fact that the only reason why he grows conventional seeds is the threat of a lawsuit from Monsanto, and if this threat didn’t exist then he would go back to growing organic seeds. So, in April 2011, these growers requested Monsanto to “expressly waive any claim for patent infringement [Monsanto] may ever have against [appellants] and memorialize that waiver by providing a written covenant not to sue.” OSGATA, et al claimed that they felt at risk of being sued by Monsanto if their fields were ever found to be contaminated with Monsanto’s patented GMOs.

At the heart of the issue was the fact that Monsanto’s promise to never sue a farmer whose fields have been (unknowingly) contaminated by their seeds was a statement on the company website. It wasn’t a law. It wasn’t something that they had sworn to under oath. It was just something on their webpage which, at the end of the day, could be false advertising or a PR gimmick. In back-and-forths between lawyers, Monsanto wrote that they have no reason to go after farmers for low level contamination because there’s no financial incentive, and that if the motives of the growers/farmers is true (i.e. that they don’t intend to use/sell transgenic seeds), then their fear of a lawsuit is unreasonable. The judge in the district court threw out the case in 2011 based on the fact that “these circumstances do not amount to a substantial controversy and . . . there has been no injury traceable to defendants”.

The case then went to the United States Court of Appeals for the Federal Circuit, whose court documents are the ones I’m summarizing. The discussion states that it isn’t sufficient to demonstrate that a patent is owned by someone and that there’s a risk of infringement: you have to actually demonstrate that there’s a substantial risk that harm may occur or that they have to go through expenses/costs to mitigate those risks. In other words, the judge asked the organic growers/seed distributors to demonstrate that there was the possibility that they might get sued for inadvertent contamination.

Organic growers/seed distributors (OSGATA) conceded that Monsanto had never threatened to sue them.

OSGATA stated that their fear is based on the fact that Monsanto has taken 144 growers/sellers to court and settled 700 additional cases out of court. Monsanto argued that none of these cases has been due to inadvertent contamination, and consequently, it was not equivalent to suing for inadvertent contamination.<

However, the court conceded that given the way patent laws are written, even using a small amount of a patented material without authorization could constitute patent infringement. For the purposes of the appeal, the judge proceeded with the ruling based on the assumption that inadvertent contamination, including cross-pollination, was inevitable (the court document clarified that this was an assumption, not a ruling).

The documents state that the whole argument was moot if Monsanto really didn’t intend to sue: the Supreme Court has recognized that a covenant not to sue nullifies a controversy between parties. Since Monsanto had a written policy on their website against inadvertent contamination, the court documents recorded Monsanto’s position on this whole argument. Monsanto and the organic growers agreed that “trace amounts” meant approximately 1 percent contamination. The ruling states that although this was not a covenant not to sue, it had a similar effect and constituted a judicial estoppel, which means that Monsanto could no longer contradict something that’s been established as truth by itself and by the court.

OSGATA stated that Monsanto’s refusal to provide a covenant had a “chilling effect” and that farmers/growers would have to forgo the activities that they would have otherwise liked to pursue. The judge stated that a “chilling effect” wasn’t something tangible, that the appellants needed to have something more specific than that, and that the future harm described was speculative and hypothetical.

The court ruling ends with this statement in the concluding paragraph: “the appellants have alleged no concrete plans or activities to use or sell greater than trace amounts of modified seed, and accordingly fail to show any risk of suit on that basis. The appellants therefore lack an essential element of standing.”

Conclusion

The organic movement considered this case to be a partial victory because they now had in writing that Monsanto would never sue them for inadvertent contamination. But I’m not sure I understand this… I think you’d have to be so paranoid about what Monsanto might do that you’d be willing to incur massive legal fees to make sure that a hypothetical never happens, even when you can’t produce proof that it might.

So how is it that this myth about Monsanto suing farmers still circulates? Based on the movie “David vs Monsanto” described in part two of the series, you could believe that Monsanto plants evidence and works with testing companies to ensure that you your testing is >1 percent. You could believe that the 700 court cases that were settled out of court were against farmers who were inadvertently contaminated, but just didn’t have the money to fight Monsanto in court. You could also believe that all the court cases had judges and witnesses who were paid off by Monsanto.

My perspective on this is that Monsanto is a huge company that has better things to do than to sue the small farmer who inadvertently uses their seeds. From a practical perspective, it would probably represent a greater expense to them in legal fees than what they would recoup through the settlement or a court case. As I described in the last post, even in cases where Monsanto has taken farmers to court for knowingly using Monsanto seeds without an agreement, there have been massive amounts of negative publicity for the company. Imagine the uproar if they took a farmer to court who genuinely had no idea that his/her field was contaminated.

To conclude this series, I have found no evidence that farmers are sued by Monsanto for inadvertent contamination. The lawsuits that I examined were for cases where farmers knowingly and admittedly used Monsanto seeds without licensing contracts. The fact that seeds are patented is not exclusive to GMOs: as outlined in the first post, many other traditionally bred seeds are patented. For some seeds, both genetically engineered and traditionally bred, farmers sign annual contracts with seed developers. However, farmers have many choices and in no way are forced to plant these seeds or sign these contracts.

Layla Katiraee, contributor to the Genetic Literacy Project, holds a PhD in molecular genetics from the University of Toronto and is a senior scientist in product development at a biotech company in California. All opinions and views expressed are her own. Her twitter handle is: @BioChicaGMO.

This post appeared originally at Biology Fortified here.

  • Farmer with a Dell

    Thank you for this excellent 3 part series presenting the FACTS surrounding irrational fear of Monsanto.

    Real farmers have real concerns about the real possibility of being sued — by an unfortunate victim of some unintended accident caused by the farmer or the farmer’s employees, by a trespasser who is injured while snooping around the farm, by activist handlers of an itinerant farm employee planted by them to generate video “evidence” of suspected wrongdoing in the farm business, or simply by some enterprising ambulance chaser who figures it’s worth a try to take a cheap shot…lot’s of possibilities. That’s why we carry liability insurance. And still we worry. And we watch our step. And we take sensible precautions.

    But lying awake nights worrying about Monsanto creeping in and contaminating your inferior crops with their superior genetics in order to sue you for patent infringement, well, that’s just paranoia. Probably pathological, at least you ought to get it looked at before it gets any worse. And you maybe should think twice about operating heavy machinery under the circumstances…or in your delusional state could end up damaging something or hurting someone and getting sued for real.

  • Tont Davies

    finally the truth

    • nifty1981

      Isn’t it funny that when the right question gets asked all the bullshit stops. I for one would like to know the answer to suzans question. Also the comment about monsanto paranoia that is nothing but a deflection all the ge producing companies are an issue its just that Monsanto has done some pretty questionable things in the past or are you actually questioning that FACT. Also nearly 1000 lawsuits (settled or not) in USA seems like alot and remember this is a global company how many lawsuits have been undertaken by Monsanto ( again settled or otherwise) by it and or Its other entities globally? And finally what happens to an organic farmer when ge seeds are found on his/her property? He/she looses organic certification. That can make or break a farmer.

      • Hope Willowtree

        As I sit here and read all these comments, a few things comes to mind.
        First, what goes around will come around. Life always has a way of bringing our biggest mistakes through our haughtiest attitudes.
        Secondly, every person has a right to know what they are going to ingest through food product purchases.

        Statistical facts out weight scientific discoveries.

        Truth out weighs lies and everybody is tired of all the lies.

        Every human being has the Right To Truth.

        • agscienceliterate

          Scientific facts ARE based on statistics.

          • Hope Willowtree

            How many statistical scientific factual deaths in nature and humanity does it take before man will change his ways?

            If the natural pollinators in nature are being killed out by the chemicals being used, I guess all the supporters of these chemicals will go and pollinate instead, right?

            Some things are just common sense.

          • agscienceliterate

            Yeah, if you buy into a doomsday scenario. If you read current info on bees you will find that 1) CCD is very complex and not simplistically attributable to pesticides; and 2) bees have recovered over the past 2 years from CCD.
            Of course, you can choose to maintain your doomsday scenario, if that fits your agenda better.

          • Hope Willowtree

            My view is not from your portrayed opinion.
            It comes from listening to older people who’s parents didn’t deal with the diseases that we deal with today. They ate natural grown food and homemade butter. Arterial problems didn’t begin until margarine came into being and has been the proven cause of heart disease by scientific studies of at least 4 or 5 thorough the years, though the american heart association will not back track and admit these studies are truth.

            That’s good that bee populations are recovering, and it might be complex but that doesn’t change the fact that pesticides impact nature.
            And if you don’t care about nature and truth, than how do you perceive a future for your grandchildren?

          • agscienceliterate

            You want to define “nature” and “truth” and enlighten the rest of us here, please? Your words are not based on science, and your presuppositions are highly questionable.

          • Mipira Mbuzi

            Not surprising that a Monsanto shill does not understand the meaning of nature and truth

          • agscienceliterate

            Oh, the old shill accusation syndrome. When there’s nothing else to say, ignore the question and accuse somebody of being a shill. Actually, I tell people like you over and over and over and over and over that if you are afraid of GE foods, or don’t understand science, or lack intellectual curiosity to find out about them, then you should definitely stick to organic and non-GMO certified foods. So, am I a shill for the $60 billion organic industry?You’re a silly little woman.
            And you still can’t define, because you have no idea yourself what you mean, what “nature” and “truth” mean. You toss these words around flippantly and ignorantly.
            You’re a silly and frivolous little woman.

          • Hope Willowtree

            Truth holds fact in one hand and integrity in the other. I challenge you to use discernment and wisdom. Wisdom comes from learning the lessons of past mistakes and makes appropriate changes to appreciate learned lessons.

            When I speak of nature, I speak of environment and ecosystems that have to maintain a balance. So that the existence of things we appreciate now are still in place for our grandchildren.

          • agscienceliterate

            Well, duhhhhh. Who doesn’t.
            The problem is your broad-brush misunderstanding of the word “natural,” subjecting you to fall smack dab into the pit of naturalistic fallacy. Please educate yourself before continuing to use words that mean nothing except activist drivel.
            https://en.m.wikipedia.org/wiki/Naturalistic_fallacy

            Wisdom is knowing what you know, knowing what you don’t know, and taking steps to learn what you don’t know. You are locked into step one.

          • Hope Willowtree

            Trying to insult me only proves childish ways and lack of self control.
            Your conversation to me is no longer is productive.

            True wisdom does not argue with the disrespectful & haughty

          • Namma

            Wisdom is not what you hope to define it.

            Wisdom IS education plus EXPERIENCE. You youngsters have a fault in your thinking that is not remedied until you get older and have life EXPERIENCE. Worse, contempt for older people is taught at all levels of education. You have been shortchanged and may never realize it. Good luck to you with the deficient world you’re building on crumbling foundations.

          • agscienceliterate

            You are making some pretty broad-brush generalizations there about being “shortchanged,” and also about my own age. (Shall I presume you are an old lady, given your name? See? A bias that may not be accurate.). Your feelings that older people suffer contempt is a bias that I certainly do not see when I look around me.
            Wisdom is much, much more than knowledge. Especially “knowledge” that is highly biased from Google University. Wisdom requires curiosity, perspective, analysis, and ability to reason.

          • Farmer with a Dell

            “Namma” — contraction of “nincompoop” and “mamma”, a jejune contraction not sufficiently sophisticated to rise to the status of a portmanteau.

          • agscienceliterate

            I don’t believe I have ever heard a farmer use the word “portmanteau.” Actually, I’ve never heard an activist use it either. Great analogy!

          • Farmer with a Dell

            Oh, us farmers have lots of words you’ve never heard us use before. Most of ’em will curl your hair and turn the air blue. The rest just make a mockery of pretentious assclowns like Michael Pollan and Mark Bittman.

          • agscienceliterate

            Especially since the activists have a play book vocabulary of only about 14 words that we hear over and over here. A little blue air in the blue skies might be a good thing on occasion.

          • kfunk937

            OT: I once left a grammarnax comment on an article a few years ago wherein the word “jejune” was used (by me) that had some other faults of interest to me (IOW, medical news). The editor responded that anyone using that word properly could be taken seriously, unlike anyone else on the the interwebz.

            I guess it’s a club.
            :P

          • “Pesticides impact nature” – nobody argues with that. But pesticides are not being used just for the sake of companies making them. They serve some imporatant purposes. So the question is how to minimise impacts, reduce the area planted and produce sufficient quantities to sustain the population. And that is why novel pesticides usually have lower environmental impact than the older ones and why GMO are used.

          • Hope Willowtree

            Thank you for your insight and respect

          • Hope Willowtree

            Is glyphosate which is one of the chemical elements of agent orange, spoken of as being part of a novel pesticide?

          • No, it is not. Glyphosate is specific inhibitor of amino acid synthesis, the plant dies because it cannot grow. Agent orange was composed of 2,4-D and 2,4,5-T, both are synthetic analogues of plant hormones. The plant dies because it grows itself to death. 2,4D is still safely used, while the synthesis of 2,4,5-T lead to its contamination with dioxines which were responsible for toxic effects of AO. It is popular to blame Monsanto for all the negative effects of Agent orange, but it is less known that substantial proportion of 2,4,5-T for USAF has been manufactured in communist Czechoslovakia. The plant still has some buildings, that are so contaminated with dioxins that they had to be enclosed in additional building on top of the old one.

          • Hope Willowtree

            Thank you for taking the time to answer my question to help me understand correctly. I appreciate this information to better comprehend the differences. And I definitely appreciate the respectfulness in how you answered.

          • you are very welcome

          • Hope Willowtree

            A thought that came after your info. Where my husband grew up, he showed me a piece of land that had been sprayed with DDT in the late 40’s. At that time they were told that it’s effects would last 8-10 years. That same land in still dead ground today 65+ years later. Thank you again for your info earlier.

          • Now I am slightly confused. What do you mean by dead ground? Do you mean without vegetation? DDT is/was and insecticide, it should have no direct impact on vegetation. It might have been something different than DDT?

          • Hope Willowtree

            Yes , nothing has ever grown on it since which is why we call it dead ground. That’s been the history for that piece of land for years. And that’s what was spoken as the cause. DDT is not water soluble only oil soluable I understand. That area is also a very dry area.

          • Namma

            Scientific facts MAY be based on SOME statistics. Generally when you have corporations paying for research there always seems to be a later leak that some other statistics were “overlooked” skewing the results of the original “research”.

          • agscienceliterate

            Give some concrete examples. You seem to misunderstand science and statistical evidence altogether. You also seem to believe that GE safety studies are all funded by biased corporate interests. Do you have the same lack of confidence in the organic food that you eat? Guaranteed safe by the $60 billion big organic industry? If so, I’ll treat you to lunch at Chipotle.

        • Namma

          I’ve also been amazed at the large amount of doublespeak and re-definition of terms by the pro-GMO folks à la Orwell’s “1984”.

  • Sean Geissler

    “I think you’d have to be so paranoid about what Monsanto might do that you’d be willing to incur massive legal fees to make sure that a hypothetical never happens, even when you can’t produce proof that it might.”

    Well, we are talking about a company that’s seeking legal ownership of life forms, and control over significant elements of our food supply. I don’t think any amount of scrutiny and paranoia is too much when it comes to matters as serious as this. Seems there’s an awful lot of damage control that Monsanto has to do for a company that likes to portray themselves as benevolent. Not seeing a lot of good faith efforts, just a lot of vinegar.

    • agscienceliterate

      Wrong, Sean. You conveniently ignore the fact that many seed companies besides Monsanto have patents. And that patents expire. And that the Plant Patent Act, which passed in 1930, has resulted in thousands of patents of all kinds of hybrid seeds, including organic. You are about 85 years behind the times, as well as ignorant of the implications of patent law.
      Please educate yourself before you post inaccurate information. Try damage control on a personal basis, please.

    • Mama Santo

      No! You are making lies about Mama Santo!

      Mama doesn’t want control of your ‘food supply’, Mama just wants to make you happy. Now come sit, Mama will make you a nice fish-tomato sandwich.

      You are a good boy Sean, stop telling lies about Mama. Come give Mama Santo a hug!

      • RobertWager

        Quoting myths (fish gene in tomato) only hows your ignorance (not an insult) about this subject and clearly displays to everyone how so many have been so myth-led by the anti-GMO industry.

  • Larkin Curtis Hannah

    Perhaps relevant here is the fact that companies and universities have been patenting plant life forms since 1940, long before biotechnology.

    • Chistopher Spader

      Not to worry, nothing and no one will stand in our path. We will crush all resistance, and pave the way for the new days. Our glory will come soon enough, God willing. Such a beautiful thing when we centralize control over the food supply, and engineer profits in the trillions! Bwa hahahaha! Winning!

      • Eric Bjerregaard

        Profits in the billions would be great. that would allow the research to develop even more fine products. Ad a farmer I look forward to more choices] when deciding what to plant. The centralize food crack was kinda dumb though. Biotech companies grow no food crops. Makes control and “crushing all resistance” a challenge.

  • Curt

    I do feel a little sorry for the trolls like Spader who have nothing better to do with their time than try to irritate people trying to have an intelligent conversation. Only a little, though. Science will win in the end.

    • gmoeater

      I think he’s trying to be clever, being goofy and sarcastic. It’s a cover. To cover up how little he knows about Monsanto and all the other seed companies, and about biotechnology and its sustainability advantages. Science will win in the end, as you say.

  • Suzan Gaatjeniksaan

    This is a very helpfull and comprehensive explanation, just one thing i don’t understand. This is stated on monsanto’s website:

    Myth: Monsanto sues farmers when GM seed is accidentally in their fields.
    Fact: Monsanto has never sued a farmer when trace amounts of our patented seeds or traits were present in the farmer’s field as an accident or as a result of inadvertent means.

    Why do they specifically state ‘trace amounts’, does that mean the have sued a farmer for having more than trace amounts of the seeds accidentally on their fields? I ask this because i think it’s not unreasonable to thing that once a small amount of your seed is ‘contaminated’, the proportion of patented seed you get will increase every year for traditional farmers who always keep seeds of the best performing plants if you assume that monsanto’s plants do better thanks to their genetic modification. You know what i mean?

  • Kristijan

    And there goes Monsanto, Bayer takes over bye bye ;) by 66 billion wonder where the cash comes from.
    Wonder how much Monsanto and other companies paid under the table for all those court process, money is the key player in the game, this fairy tales you can sell too children not to the world. I’m in the system I know how it works.. Have I nice scientific day.

    • agscienceliterate

      Your “wondering” smacks of conspiracy thinking, and does not appear to address genuine curiosity and desire to know. But then, you say you are “in the system” so you have concluded, falsely, that you know how it “works.” Tell us how it works.