OSGTA v. Monsanto: Searching for Rosa Parks

A week or so ago a friend of mine asked my thoughts on a recent District Court opinion.  Essentially, OSGTA v. Monsanto dismissed a case by a group of organic farmers who had asked Monsanto for a blanket assurance that they would not be prosecuted for patent infringement should “stray” plants from farms that used, e.g., “Roundup Ready” seeds (Roundup is an herbicide that farmers use to prevent weeds from growing in their fields; it’s pretty powerful, but Roundup Ready seeds are engineered to resist its active ingredients, improving the discrimination between weeds and crops).

Monsanto, no surprise, refused to give such an assurance, and the farmers sued, asking the court to declare (1) that (as a matter of law) they had not infringed the patents covering the GMO seeds; (2) that (as a matter of law) the patents were invalid; and (3) that (as a matter of law) Monsanto would in any case be entitled to no remedies if infringement had occurred.  The court dismissed the case, and gave the farmers a bit of a “benchslap” as well, pointing out that they really had to stretch to get a true threat out of Monsanto’s refusal.

Anyway, what follows is a slightly edited response to my friend’s question.  I am not a lawyer (yet) and I am especially not a patent lawyer.  So nothing below is in any way to be taken as legal advice.  Just sayin’.  Page references are not Bluebook standard, and refer to the copy of the opinion linked above.

You asked for my take on the Monsanto reasoning, so here it comes.

It’s a pretty basic opinion, and I found only one real problem with the reasoning–but it’s a problem that arises only because the plaintiff’s attorney didn’t do a better job.

Essentially, what the judge is saying is that, on the facts as pleaded, these is no real “case or controversy” before the court.  Since jurisdiction under Article III requires that there be a case or controversy, the court has no jurisdiction.  I think she’s right.

It looks like what the plaintiffs did was to plead that it was conceivable (given their exchange of correspondence with Monsanto), that at some future point Monsanto might sue them.  As the judge points out, that requires a stretch in terms of interpreting the correspondence between the parties.  Given that none of the plaintiffs has been sued by Monsanto, you need more than the merest possibility of a vague hint of legal action to create a “case or controversy.”

From my perspective the place that the attorney may have failed his or her  clients is that when the judge looks for some kind of risk that Monsanto presents a threat to the farmers, there isn’t even good statistical evidence:

Plaintiffs argue that defendants’ 144 patent-infringement lawsuits filed against farmers between 1997 and April 2010 create a reality of the threat of injury.  Plaintiffs, however, overstate the magnitude of defendants’ patent enforcement.  This average of roughly thirteen lawsuits per year is hardly significant when compared to the number of farms in the United States, approximately two million. (p. 14)

Since there is only a vanishingly small probability of prosecution (and the cases prosecuted are dissimilar to the situation of the plaintiffs), and since none of the plaintiffs has been sued, and since Monsanto hasn’t really made a colorable threat on paper…no case.

Personally, were I the attorney working for the plaintiffs, I would have briefed facts showing a significantly greater likelihood of suit–e.g., by pointing out (1) that many of the farms in that 2,000,000 figure cited by the judge are mere hobby farms (I’d guess close to 50%, but it shouldn’t be hard to find out from the USDA and/or the IRS), and many of the rest (particularly, if I recall correctly, in the south) are relatively small (<200 acre) farms devoted to crops other than those for which Roundup is a factor.  By contrast, the farms that do use roundup tend to be located in the West, and cover thousands of acres (this is all from memory from a long time ago, and may not be very accurate–the point is to make the threat more tangible).  In sum, what they needed to plead was probably something greater than a 100:1 risk of litigation, and/or a high probability that what they were doing would get them prosecuted (hard to do, but).

I think that the judge made a reasonable decision based on the evidence presented.  It’s not a decision I’m all that crazy about, but given the facts, almost certainly the right one.

My friend then asked whether it would have been a good idea to include some farmers who had been sued or threatened with suit, but who had settled with Monsanto.  The first question was whether farmers who had settled could be involved in further litigation…

Yeah, a settlement agreement is essentially a contract that, in consideration of some value received, you’re not going to proceed with litigation.  So if there are farmers that have settled with Monsanto, they’re pretty much hors de combat.

But there’s a flip side; the only cases that the judge discusses in which Monsanto sued are clearly distinguishable from the situation of the farmers who were plaintiffs in this case.  Plaintiffs said “Nu-uh, we’re not using that stuff, we don’t want to, we don’t want it contaminating our crops, and in fact some of us have even stopped producing crops that might have been cross-contaminated, ’cause we’re afraid Monsanto might sue us,” (the last of which is, as the judge points out, only a self-inflicted injury).

The ones who were sued, according to judge (and this is material that had to be presented in court and/or submitted in briefs) were sued for deliberately infringing Monsanto’s patents (see the cases cited at p. 15, beginning with Monsanto v. Parr).  Thus the court concludes that “there is no evidence that defendants have commenced litigation against anyone standing in similar stead to plaintiffs.” (p. 15).  Given that one side says “Woah, we don’t do that” and the other side says “Well, we don’t prosecute people who don’t do that,” it’s really hard to find the potential injury.

If the plaintiffs had included included farmers who had been sued, but only on a Parr-like basis, they still would have been in a bad spot.  After all, if you agree as a condition for using this kind of seed not to recycle it and then you do recycle it, you have breached a contract.  It’s hard then to claim that Monsanto has no right to sue.  You made the deal, and you have to take the cost with the benefit.  You might claim the contract was unconscionable, but that’s a hard case to make, and would likely fail here.

On the other hand, if the plaintiffs could show evidence of either lawsuits or threats of legal action made by Monsanto against some of the plaintiffs when inadvertent cross-contamination of their crops occurred, then the court would sit up and pay attention.  That doesn’t mean that the farmers would necessarily win, but rather that they would get farther in the process.  The dismissal in this case amounts to a statement that the proposed legal threat is essentially illusory.  Show that it’s not, and you could get somewhere.

So–what you need is a farmer whose crops are contaminated with transgenic seed, but who isn’t willing either to take settlement money from the seed producer to remain silent, or to bow to the threat of a lawsuit.  Your ideal plaintiff has to (a) be placed in harm’s way through no fault of his own (he must have “clean hands,” and (b) be willing to take the consequences if Monsanto tries to make an example of him or her in the event that a court finds for the seed producer.  That’s a sucky situation, but such people exist (e.g., Rosa Parks–though in fact she went to some trouble to place herself in harm’s way; something that wouldn’t work here).  You just have to wait for the situation to present itself.

If it does, then you have (as a judge of my acquaintance would say) a case with legs.  If it doesn’t, then that tends to show that the threat is in fact illusory.

What is the real goal of the plaintiffs here?  I don’t see the plaintiffs listed on the opinion as being especially eager to violate Monsanto’s patents, so neither the blanket “no sue” policy from the company nor two of the requested declaratory judgments (that plaintiffs are not infringing, as a matter of law, or that no remedies are available if they are, as a matter of law) seem to be worth a pile of spit.  I think it’s the third declaratory judgment that plaintiffs really want:  “[T]hat [Monsanto’s] patents are invalid and unenforceable.”

Such a judgment would mean that, as a matter of law, Monsanto could not enforce its patents anywhere.

Result?  Monsanto would have no further economic interest in producing transgenic seeds.  If you can’t patent them, there’s no profit in them, and Monsanto (and likely other transgenic seed producers) would withdraw from the market.  Unless the transgenic properties are extremely good for the seeds from an evolutionary perspective (and it is my understanding that they are deliberately not–that there is supposedly a “suicide gene” encoded in the transgenic stuff to make grown seed infertile, and thus prevent farmers from harvesting transgenic crops for seed), they would then be out-competed by organics and traditional hybrids within a few generations.  End of problem.

Am I completely off my rocker or might that be the underlying goal here?

If it is, I have an idea for a different approach…it might or might not work, but it seems to me that it could be worth a shot.  The claim would have to be based on tort notions of trespass, nuisance (less likely, but possible) and/or ultra-hazardous activities.  The idea wouldn’t be to make it worthless for Monsanto to proceed, but rather to make it very costly by invoking the principle of strict liability.  Whether even if it worked it would be costly enough, I don’t know.

I don’t really know if my ideas regarding strict liability are any good.  Might  be, might not.  But the real lesson to take away here is that we need Rosa Parks and people like her.  You might (or might not) dislike GMO products.  You might (or might not) disapprove of Apartheid and its friends and neighbors.  You might be pro-life, or favor gay marriage.  Whatever.  Until someone puts their life and/or their livelihood on the line, there’s no case.  Social change takes guts.

So, a bit of advice from a bastardized Gandhi quotation and my own reflection on transgenic seeds: 

Be the Rosa Parks you want to see in the world.

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