In a classic example of a pre-emptive strike, in March 2011 a coalition of over fifty groups representing organic farmers and non-genetically modified seed dealers filed suit in a federal court seeking protection against any potential lawsuits that might be filed against them by the chemical and agri-business giant Monsanto. The problem is that the seeds from this company’s genetically-modified crops have a tendency to spread and contaminate nearby fields growing similar crops, and farmers who have inadvertently replanted seeds that did not originate on their land are in danger of being sued by Monsanto for infringement of patent rights.
Unfortunately for the plaintiffs, however, in February 2012 Judge Naomi Buchwald of the U.S. District Court for southern New York threw out the lawsuit  that had been filed by the Public Patent Foundation, ruling that there were no legal grounds for such an action. Judge Buchwald chastised the plaintiffs for engaging in “a transparent attempt to create a controversy where none exists,” noting that Monsanto had never pursued legal action against organic growers before and had pledged not to file suits against any farmer who had unknowingly used its seeds in the future.
At first consideration, it might seem as if Judge Buchwald’s ruling conforms to common sense. If courts allowed people to seek legal protection based on speculation about what might happen in the future, our court system could quickly become overrun with entirely frivolous lawsuits.
But there is much more going on here than meets the eye. Before we dismiss the action that the Public Patent Foundation  took as nothing more than a publicity stunt, we need to look a little more closely at what has actually been going on in the courts and in the farm fields across America over the past several years.
Using the Law as a Weapon
Given Judge Buchwald’s ruling and comments, one might get the idea that Monsanto is a kind and gentle company that would never even think of suing anyone who has accidentally used their seeds. But the facts say something quite different: between 1997 and 2010, Monsanto actually filed 144 separate lawsuits against farmers for patent infringement , and despite the company’s claims to the contrary, there is no evidence that any of these farmers used Monsanto’s seeds intentionally. Germ plasm from crops like corn, soybeans, and cotton can migrate easily from one field to another, and there is seldom any way for farmers to know when such a thing has happened. In truth, there is really very little doubt that the vast majority of farmers caught growing Monsanto’s GMO crops were doing so by mistake and without intent, but that has not stopped this agri-business giant from filing patent infringement lawsuits right and left.
It is Monsanto’s reputation as a company that will bring legal action against just about anyone found growing their crops without proof of purchase that motivated the Public Patent Foundation to take the action it did. As Monsanto gains more and more of the market share, their genetically-modified crops will be showing up in more and more farmers’ fields, thereby increasing the likelihood of accidental contamination for any grower who chooses not to go along with the program. Organic farmers and non-GMO seed dealers see a clear and present danger here, and Monsanto’s real history – which was presented to Judge Buchman by the PPF’s attorneys – shows they truly do have something to fear.
The Power of Monopoly
Despite the paeans to the American free enterprise system that you will frequently hear from corporate executives and the elected figureheads whose votes they buy, big businesses discovered long ago that the best way to make a profit is to use any dirty tactics they can think of to drive their competitors out of business one by one until there is no one else left standing. Then, a company can charge as much as they want for their products, and people will be forced to buy from them because they are the only game in town.
In many sectors of the economy, monopolies or oligopolies have become very well established, and to some extent this is true in the agricultural sector as well. Nevertheless, the small farmer has proven surprisingly resilient, and the push toward organic crops in particular has helped keep the small farm economy vibrant and relevant.
So the agribusiness companies have been looking for strategies to undermine the small growers and producers who remain, and the lawsuit strategy hit upon by Monsanto has proved to be a stroke of genius. Suing over contamination and claiming patent infringement puts small farmers in an impossible position because there is no way they can afford the legal expenses required to compete equally with Monsanto in the courts. As a result, many of the farmers persecuted following the contamination of their fields by GMO seeds have had no choice but to settle and pay damages, despite the fact that they really hadn’t done anything wrong. Other farmers, seeing the trouble that using alternatives to Monsanto’s products can cause, are turning more and more to GMO’s because it seems like the only safe strategy to avoid future problems. Making the situation even more difficult is that the influence the big agribusiness companies wield in the political arena  makes it virtually impossible for small producers under siege to get any help from the elected officials at the local, state, and national levels who supposedly represent them.
The Shape of Things to Come
While it is true that organic growers have not yet been targeted for lawsuits, this does not mean they won’t be in the future. Once all the non-organic growers have been “persuaded’ to adopt GMO’s, organic producers will be the only holdouts left. As the use of Monsanto’s “Roundup Ready”  (herbicide resistant) corn, soybeans, cotton, and other products continues to grow, it may be all but impossible for any non-GMO grower to avoid contamination from neighboring fields, and if Monsanto decides to start suing organic producers who are inadvertently saving and using GMO seeds, they will have a huge advantage in the courts because of the deep financial resources they have available to pursue legal action.
All of this is why the organic growers and non-GMO seed dealers tried for a pre-emptive strike in the federal courts. In the end, it is not clear if they ever had much of a chance of winning their case. But if nothing else, they have at least been able to call some attention to what has been happening to farmers who have up until now refused to join the GMO revolution. Hopefully Monsanto will be at least somewhat reluctant to file suit against organic growers in the future after the publicity that their past tactics have received as a result of this lawsuit. But in all honesty, this appears to be a faint hope at best.
The views and opinions expressed in this article are those of the writer and
not necessarily the views of Off The Grid News.