Baker Creek, organic growers lose suit against Monsanto

Officials from Mansfield-based Baker Creek Heirloom Seeds were among 83 agriculture-based organizations, farmers and seed sellers disappointed to fail in their attempt to protect themselves from what they say is the long reach of seed-giant Monsanto Co.

Last month, the U.S. Court for the Southern District of New York dismissed a lawsuit brought against Creve Coeur-based Monsanto Co. (NYSE: MON) by the Organic Seed Growers and Trade Association and others. In total, the plaintiffs represented 36 agriculture and food safety membership organizations, 14 seed businesses and 33 primarily organic farms and farmers from across the country.

The case was filed March 29, 2011, by New York-based Public Patent Foundation Inc., which sought to challenge Monsanto’s patents as a pre-emptive strike to protect the rights of the plaintiffs. The organic or pure-foods farmers say Monsanto’s genetically engineered seeds grown in nearby fields could unintentionally cross-pollinate with their crops, leaving organic growers vulnerable to litigation for patent infringement. Monsanto, known for its genetically modified Roundup Ready herbicides and resistant seeds, has 23 patents relating to its genetically altered products.

Federal Judge Naomi Buchwald ruled Monsanto had not bullied organic farmers in the past, and there was no basis to invalidate its patents, as the suit sought to accomplish.

Baker Creek Heirloom Seeds owner Jere Gettle said he was disappointed the case never went to trial, because the concerns of the plaintiffs are real.

“Hopefully, this will bring (the issue) to Monsanto’s attention and they can review their policies,” Gettle said. “Hopefully, everything can be double-checked before a lawsuit is brought against a farmer to make sure the farmer intentionally did it. That’s the biggest thing – there’s no way to prove whether a farmer did or didn’t intentionally take the genes. (Cross-pollination) can be from the wind blowing the seeds out of a truck or it can be from a neighbor’s farm or from a farmer intentionally doing it. That’s the hard part.”

Dan Ravicher, executive director of the Public Patent Foundation, said the group was considering appealing the judge’s decision, a move they’d have to make by March 31.

“While I have great respect for Judge Buchwald, her decision to deny farmers the right to seek legal protection from one of the world’s foremost patent bullies is gravely disappointing,” Ravicher said in an e-mail statement. “Her belief that farmers are acting unreasonable when they stop growing certain crops to avoid being sued by Monsanto for patent infringement should their crops become contaminated maligns the intelligence and integrity of those farmers.” 

Gettle said he would support an appeal by PUBPAT. He said the size and scope of Monsanto – a company that posted 2011 revenues of $11.8 billion and operates in 66 countries – is cause for concern for small businesses that are a part of the flowering organic and heirloom industries.

The ruling said Monsanto’s actions could not reasonably be construed as threatening because there was no evidence that the plaintiffs were infringing upon Monsanto’s patents.

“While defendants investigate hundreds of possible patent infringers each year, between 1997 and April 2010, they filed just 144 lawsuits to enforce their patent rights against farmers,” the ruling reads. “Defendants, moreover, have never filed a patent-infringement suit against a certified organic farm or handling operation over the presence of patented traits in its operations, and they stated at oral argument that they have never sued a party who did not ‘want to make use of the traits that are manifested in (Monsanto’s) transgenic products.’ Nevertheless, plaintiffs allege without specification that defendants have accused certain nonintentional users of Monsanto’s seed of patent infringement and threatened them with litigation.”

Following the ruling, David Snively, Monsanto’s executive vice president, secretary and general counsel, issued a statement:

“This decision is a win for all farmers as it underscores that agricultural practices such as ag biotechnology, organic and conventional systems do and will continue to effectively coexist in the agricultural marketplace,” Snively said. “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.”

Seed sellers, such as Gettle, who are not using Monsanto’s genetically altered seeds, argue that in order to preserve the integrity of their heirloom products, they must perform testing. Gettle said testing for his heirloom seeds, which are not altered and have a lineage of at least 50 years, costs him roughly $3,000 per year.

With his corn varieties dwindling due to contamination – about half of the 25 varieties he was selling have tested positive for genetic modification during the last couple of years – Gettle estimates he lost $150,000 the last two years. Though Baker Creek recorded nearly $4 million in revenue last year up from $3.5 million in 2010, Gettle said many farmers can’t sustain those kinds of losses due to contamination.

Another concern, Gettle said, is many countries now require labeling if a seed is meant for food and has been genetically modified. If it becomes harder to keep organic seeds from crossing with genetically modified organisms, it may become harder to sell to European countries and others, where people tend to be more concerned about GMOs.
 
“There’s too much at stake,” Gettle said.