In an unsurprising decision, the US Court of Appeals for the District of Columbia Circuit has ruled that the Organic Seed Growers and Trade Association case against Monsanto was properly dismissed by the district court. The case was brought by a group of 60 family farmers, seed businesses, and agricultural organizations to preemptively block Monsanto from suing them for patent infringement in the event that Monsanto’s protected “Roundup Ready” genetically modified seeds and traits unintentionally drifted to their fields. The district court found that there was no actual controversy because the plaintiffs’ concerns that GMO contamination could reduce the value of their crops and cause them to lose organic certifications were merely theoretical and hypothetical possibilities. None of the plaintiffs alleged that contamination actually had occurred. Moreover, none of the plaintiffs had been sued by Monsanto or threatened with a lawsuit for patent infringement. Nor was there any evidence that Monsanto had ever sued anyone for unintentional patent infringement.
Although the plaintiffs technically lost, they won, for practical purposes, at least some of the relief they sought – assurance that Monsanto will not go after farmers who unintentionally use their patented GMO technology due to crop drift, at least when only trace amounts of Monsanto’s patented seeds are present. The Court of Appeals found that Monsanto has made binding assurances, including by making the following statement on its website:
It has never been, nor will it be Monsanto policy to 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.
Because Monsanto won this case based on representations that it will not sue for inadvertent infringement in such circumstances, Monsanto is judicially estopped from taking a contrary position in a future lawsuit against the plaintiffs. The court found that Monsanto committed not to sue persons who unintentionally plant or sell seeds that are inadvertently contaminated with “trace amounts” (up to one percent) of seeds carrying Monsanto’s patented traits.
Yet, as the court pointed out, Monsanto takes a “narrow” view of inadvertent infringement, “excluding those growers whose crops become accidentally contaminated, and who do not treat their fields with Roundup, but who, knowing of the contamination, harvest and replant or sell the seeds.” And, it remains an open question whether Monsanto might seek to enforce its patent rights in circumstances where a farmer unintentionally uses or sells more than a trace amount of Monsanto’s patented seeds. Thus, the court’s decision leaves open the possibility that a similar lawsuit could be brought by a plaintiff seeking protection from a patent infringement action if the plaintiff unintentionally uses or sells seeds containing more than one percent of Monsanto’s technology.