Lawsuit: Biotech patents invalid, unenforceable

By MATEUSZ PERKOWSKI

Capital Press

Several organic farmers and trade groups have asked a federal judge to declare that Monsanto's patents for genetically engineered crops are invalid and unenforceable.

The plaintiffs say they want to prevent the biotech developer from suing them for patent infringement if their crops are accidentally contaminated with transgenic traits.

The complaint offers multiple reasons why Monsanto's patents should be declared invalid or unenforceable. Notably, they claim the patents violate provisions in the U.S. Constitution and the Patent Act that require inventions to be useful.

"Because transgenic seed, and in particular Monsanto's transgenic seed, is 'injurious to the well-being, good policy or sound morals of society' and threatens to 'poison people,' Monsanto's transgenic seed patents are all invalid," the complaint said, citing a court precedent from the early 1800s.

The lawsuit also challenges Monsanto's patents based on more common legal theories, such as having been "rendered obvious by prior art" and the company's failure to comply with patenting rules.

In a statement, Monsanto called the allegations "a publicity stunt designed to confuse the facts about American agriculture" and said the plaintiffs' arguments are "contrary to long established legal precedent" that upholds biotech patents.

The company has vowed not to file lawsuits over the "inadvertent presence of biotechnology traits in their fields," the statement said.

Before the plaintiffs can try to show Monsanto's patents are invalid or unenforceable, they must first prove their standing -- the right to challenge the defendant in court.

"Unless they have reason to think Monsanto might sue them, I doubt they have standing to pursue the claim," said Mark Lemley, a professor specializing in science and technology law at Stanford Law School, in an e-mail.

Plaintiffs must generally show they have been threatened with lawsuits, or are reasonable to fear legal action, to establish standing, said Scott Locke, a patent attorney and adjunct professor on biotech law at Seton Hall University.

"If Monsanto has made no overtures to them, they're going to have a tough standing hurdle," he said. "They may be afraid, but it may not be reasonable."

As for the claim that Monsanto's patents should be invalidated due to their danger to society, Locke said that federal courts tend not to butt into matters of public policy.

"You're taking a long shot," he said. "It's not the way courts work with patents, generally."