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Maine Farmers Among Plaintiffs Appealing Monsanto Ruling
01/10/2013   Reported By: Patty B. Wight

Four Maine farmers are hoping to take on seed and chemical company Monsanto in court. They're among a group of more than 80 plaintiffs who are trying to protect farmers from patent infringement lawsuits when their crops are accidentally contaminated by Monsanto's genetically modified seeds. Their initial case was dismissed last year in federal district court. A federal appeals court heard oral arguments today in Washington, DC to decide whether it should proceed.

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The Organic Seed Growers and Trade Association, a national non-profit based in Maine, is the lead plaintiff in the case. At the helm is president Jim Gerritson, who is also farmer from Aroostook County. Gerritson said the case should give every american something to chew on.

"If organic farmers cannot be protected in their right to farm, then every consumer, every American citizen, has lost their right of access to choice in the marketplace for something other than genetically modified food" said Gerritson.

Here's the issue: Monsanto produces genetically modified seeds, and farmers who use them must buy them every year. But Gerritson said those seeds can inadvertently drift into other farmer's crops, and when they do, Monsanto files suit against the farmers with the contaminated crops alleging patent infringement. That, he said, is an over-reach of their patent protection.

"We are not customers of Monsanto, we don't want their technology, we certainly don't want them to trespass and contaminate our crops, and that as the innocent victim of their contamination, we don't feel we should have to defend ourselves in court," he said.

But when a district court judge heard pre-trial arguments for the case last year, she dismissed it, saying plaintiffs' claims were unsubstantiated because none of them had actually been threatened with a lawsuit. She noted in her ruling that Monsanto filed an average of just 13 lawsuits per year from 1997 to 2010 against other farmers. Other sources such as the Center for Food Safety, an advocacy group that opposes genetically engineered foods, contends there are likely hundreds of other additional cases that are settled confidentially out of court, typically in Monsanto's favor. The challenge for the plaintiffs in this current case is to convince the appeals court that they face an imminent threat of lawsuit.

"The federal circuit is really friendly to patent holders, and I don't see them changing their stripes," said Rita Heimes, a clinical professor of law at the Maine School of Law.

"The problem with this case I think for the plaintiffs is they're not infringing Monsanto's patents. They're not even engaging in behavior that might infringe Monsanto's patents," said Heimes. "So for them to bring a case claiming that Monsanto's patents are invalid is a significant stretch."

Heimes said Monsanto, with perhaps just a couple exceptions, does not tend to sue organic farmers who have traces of genetically modified seeds in their crop. Heimes said regardless of whether or not farmers are successful bringing this current lawsuit forward, the case has other benefits.

"It is a wonderful way to put forward in a very public light the concerns that organic farmers have about GMOS by using patent law as a way to get their story out," she said.

Maine farmer Meg Liebman is another plaintiff in the case. She said getting the story out is what keeps her going in the case against Monsanto, no matter what the outcome.

"While this lawsuit, if we were successful, it would serve to offer protection for the folks trying to grow GMO-free seed, it wouldn't offer consumer protection from these products, or education around the issue, so I think this is a tiny battle in a long fight," Liebman said.

Monsanto declined MPBN's request to be interviewed for this story. Instead, the company provided a written statement regarding the appeal, saying plaintiffs are trying to create a controversy where none exists. Monsanto also maintains that there is neither a history of behavior nor a reasonable likelihood that it will pursue patent infringement matters against the Plaintiffs.

A three judge panel could decide as early as next week whether the case should be heard in court.


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