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Farmers Challenge Fed Cir Monsanto Decision, Petition SCOTUS

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By Gabriella Khorasanee, JD on September 11, 2013 3:56 PM

The Organic Seed Growers and Trade Association ("OSGATA") are not giving up. They may have lost the latest round of litigation, with Monsanto Technology, LLC ("Monsanto"), earlier this summer but that's not stopping them. Last week, the group consisting of 73 farmers petitioned the Supreme Court for a writ of certiorari, according to AgriMarketing.

Federal Circuit Decision

On June 10, 2013, the Federal Circuit affirmed the district court's decision finding the case or controversy requirement was not met. Plaintiffs initiated a preemptive action against Monsanto, for fear that they themselves would be sued by Monsanto for patent infringement if their crops were contaminated by Monsanto's genetically modified seeds.

Because Monsanto has explicitly declared (on its website and by its counsel's statements) that it would not sue farmers with trace amounts of their genetically modified products, the Federal Circuit held that Monsanto's statements made the case moot. The court noted: "While Monsanto's representations are not a covenant not to sue, they have a similar effect. If we rely on Monsanto's representations to defeat the appellants' declaratory judgment claims (as we do), those representations are binding as a matter of judicial estoppel."

Petition for Writ of Certiorari

Though plaintiffs are essentially protected from the threat of litigation, last week they petitioned the Supreme Court for a writ of certiorari. The petition claims that plaintiffs are denied full use of their land because of the inevitable contamination of their crops by Monsanto genetically modified seeds. They claim that though they are protected from trace amounts (about one percent), they state:

Petitioners risk being contaminated in amounts greater than 1%, and thus remain compelled to forgo full use of their land and adopt genetic testing of their seed and supplies in order to avoid being accused of patent infringement by [Monsanto].

It's hard to say whether the Supreme Court will grant the petition for review, but if it does, it will come on the heels of another Monsanto case to make it up to the Supreme Court for review. Considering the growing disdain for genetically modified products, labeling issues, and organic food movement, cases like this may become increasingly popular.

It may be wise for the Supreme Court to settle the law sooner, rather than later.

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