Catharine Daniels, Attorney, OSUE Agricultural & Resource Law Program
The court’s decision was not exactly what a group of farmers, seed sellers, and agricultural organizations was hoping for, but they are nevertheless claiming partial victory against Monsanto in a recent lawsuit centered on genetically modified seed. On June 10, 2013, the United States Court of Appeals denied the group’s request for a judgment against Monsanto but at the same time declared that Monsanto would be judicially bound to its promise not to pursue future patent infringement suits against the growers, seed sellers or organizations for “inadvertently using or selling ‘trace amounts’ of genetically modified seeds.”
Several farmers and organizations who grow, use, or sell conventional and organic seeds (“Seed Growers”) filed a federal lawsuit against Monsanto in March of 2011. Ohioans in the group include the Ohio Ecological Food and Farm Association. The Seed Growers asked the court to declare some of Monsanto’s patents “invalid, unenforceable, and not infringed.” The Seed Growers claimed they had to forgo planting certain crops and had to take “costly precautions” to avoid contamination by Monsanto’s genetically modified “Roundup Ready” seeds. Pointing to Monsanto’s history of aggressive patent infringement litigation, the Seed Growers feared they would be sued by Monsanto despite their efforts to prevent unintended contamination. The Seed Growers also alleged adverse health effects and long term environmental impacts from the genetically modified seed. The federal court dismissed the case after determining that no traceable injury existed that the court could address, since none of the Seed Growers had actually been sued by Monsanto.
The Seed Growers appealed the decision to the Court of Appeals for the Federal Circuit. The court of appeals agreed that there was not a current traceable injury to the Seed Growers. But the appeals court also concluded that there was no risk of harm to the Seed Growers because Monsanto had “unequivocally disclaimed any intent to sue appellant growers, seed sellers, or organizations for inadvertently using or selling “trace amounts” of genetically modified seeds.” Even though Monsanto had denied the Seed Growers’ request to enter into a written covenant not to sue, the appeals court held that Monsanto’s promise to the Seed Growers throughout the lawsuit had the same effect as a written, signed agreement not to bring suit.
How Can the Court Enforce Monsanto’s “Promises”?
Monsanto’s promise not to sue the Seed Growers came through verbal representations made in the course of the federal court proceedings. How can the court hold Monsanto to such a promise? To do so, the appeals court relied on the unique legal doctrine of “judicial estoppel,” which states that under certain circumstances, a party who makes a declaration in a legal proceeding will be bound to that statement and may not contradict the declaration in a future legal proceeding. The appeals court examined three factors that warrant a court’s use of judicial estoppel:
- The party’s later position is clearly inconsistent with its prior position.
- The party successfully persuaded a court to accept its prior position.
- The party would derive an unfair advantage or impose an unfair detriment on the opposing party if the court didn’t step in to enforce the promise.
According to the court, all three of these situations would exist if Monsanto later sued the parties for patent infringement, which requires the application of judicial estoppel to bind Monsanto to its promise.
But the Promise is Limited
Monsanto’s promise was not to sue “inadvertent users or sellers of seeds that are inadvertently contaminated with up to one percent of seeds carrying Monsanto’s patented traits.” But what about growers who inadvertently use or sell seed containing greater than trace amounts; i.e. greater than one percent? Despite the appeals court’s effort to clarify whether or not Monsanto would assert its patent rights in those situations, Monsanto would not state its position on the issue. Monsanto did make it clear that their view of an inadvertent infringement is quite narrow, stating that an “inadvertent infringer” would not include “those growers whose crops become accidentally contaminated, and who do not treat their fields with Roundup, but who, knowing of the contamination, harvest and replant or sell the seeds.” Thus in situations where growers inadvertently use or sell seed containing greater than trace amounts of Monsanto’s seed, it is possible that Monsanto could bypass judicial estoppel and pursue a patent infringement case.
So Was this Really a Victory for the Organic Seed Growers?
While the Seed Growers did not obtain the declaratory judgments they sought against Monsanto, they did receive some protection from future litigation in the form of judicial estoppel. Because the appeals court concluded that the Seed Growers were not at risk of being sued by Monsanto, the court was able to avoid delving into the deeper issues of whether or not Monsanto’s patents are valid, whether avoiding contamination is a burden to conventional farmers and whether Monsanto’s seed poses health and environmental harms. The Seed Growers have expressed interest in requesting a review of the decision by the U.S. Supreme Court. Even if the case does not make its way to the Supreme Court, it surely isn’t the last lawsuit we’ll see that challenges genetically modified seed technology.
View Organic Seed Growers et al v. Monsanto here.