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Monsanto beats organic lawsuit


District judge rejects 'transparent effort to create a controversy where none exists'


By MATEUSZ PERKOWSKI


Capital Press


Organic farm groups have failed to convince a federal judge to declare that a major biotech company's patents are unenforceable.


Dozens of plaintiffs in the case filed a lawsuit against the Monsanto Co. last year, seeking to prevent the firm from suing organic farmers for patent infringement if their crops cross-pollinate with transgenic varieties.


U.S. District Judge Naomi Buchwald in New York threw out the lawsuit due to a lack of standing, since Monsanto wasn't actually seeking to enforce its patent rights against the organic groups.


Buchwald said the company's actions "cannot reasonably be construed as threatening" and said the plaintiffs engaged in a "transparent effort to create a controversy where none exists."


Dan Ravicher, attorney for the plaintiffs, said the ruling was "gravely disappointing" and that the organic groups were considering an appeal.


"All my clients want is to be left alone," he said in an e-mail. "They don't want to have to worry about being accused of patent infringement and they don't want to have to stop growing certain crops in order to avoid that risk."


The decision denies farmers the "right to seek legal protection from one of the world's foremost patent bullies," and the judge's reasoning constitutes "legal error" in its interpretation of federal law and Supreme Court precedent, he said.


Plaintiffs in the lawsuit include the Organic Seed Growers and Trade Association, the Organic Crop Improvement Association International and about 60 other groups and individuals.


In a statement, Monsanto said the ruling underscores the company's long-held position not to sue farmers who don't want to use its transgenic traits and are subject to inadvertent cross-pollination.


"Importantly, this ruling tore down a historic myth which is commonly perpetuated against our business by these plaintiffs and other parties through the Internet, noting that not only were such claims unsubstantiated but, more importantly, they were unjustified," said David Snively, the company's general counsel.


In their March 2011 complaint, the plaintiffs argued the company's biotech patents should be declared invalid and unenforceable.


The organic groups cited a court precedent from the early 1800s against patents that are "injurious to the well-being, good policy and sound morals of society."


The plaintiffs' standing in the case was a question from the beginning.


To establish standing under Supreme Court precedent, plaintiffs had to show they had a "substantial controversy" of "sufficient immediacy and reality" with Monsanto over patent infringement.


When the case was filed, two patent law professors told Capital Press the organic groups would be unlikely to meet that threshold.


The organic groups claimed they could pass this test because Monsanto has filed numerous lawsuits against farmers over patent infringement and because the company refused to promise not to sue the plaintiffs.


The judge rejected these arguments, finding that the 144 patent infringement lawsuits filed by Monsanto since 1997 were leveled against growers who intentionally saved seed with transgenic traits.


A Monsanto response letter to the plaintiffs, which stated the company would not sue over "trace amounts" of its patented genes inadvertently found on farms, cannot be seen as a threat, the judge said.


The company's refusal to "waive any claim for patent infringement" against the plaintiffs -- as requested by the organic groups -- was not enough to qualify as a controversy, the judge said.


Buchwald said the proposed "blanket waiver" was "so broadly framed as to preclude any realistic chance of defendants' acceptance."


"In short, plaintiffs' letter was clearly intended to be used as a prop in this litigation, and the failure to sign a covenant not to sue borders on the wholly irrelevant," she said.



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