GMOs and Patents: Part 3 – Lawsuits for inadvertent contamination

This is the third and final post in a series examining the topic of GMOs and patents. The first post provided an overview on the topic of patents and described the concept of “terminator genes”. The second post examined lawsuits against farmers for using genetically modified seeds, focusing on two high profile cases (Schmeider v Monsanto, and Bowman v Monsanto). This final post will examine whether there have been cases of lawsuits brought against farmers for unknowingly using GE seeds or inadvertent contamination.

This paragraph from the previous post in the series must be repeated here: “Most of this article will focus on Monsanto, primarily because it has been the target of many activist efforts (I have yet to see a March Against Syngenta). As you may know, the commonly repeated myth is that Monsanto has taken hundreds of farmers to court for inadvertent contamination or for replanting GE seeds. According to the company’s website, there have been ‘147 lawsuits filed since 1997 in the United States. This averages about 8 per year for the past 18 years. To date, only 9 cases have gone through full trial. In every one of these instances, the jury or court decided in our favor.'”

To determine if any of these cases was unfairly brought against a farmer (inadvertent contamination or unknowingly using GE seeds), I would have had to review each of these cases. However, I came across a story that had done all the work for me: a 2013 court case, known as OSGATA vs Monsanto.

lawsuits against farmers for inadvertent contamination

Organic Seed Growers and Trade Association et al. v. Monsanto Company

Most of the information from this section is from the United States Court of Appeals for the Federal Circuit court documents.

In 2013, a coalition of organic farmers, seed distributors and anti-GMO organizations, including names such as the Center for Food Safety, Food Democracy Now!, and the Cornucopia Institute, joined forces and took Monsanto to court to invalidate 23 of the company’s patents, particularly surrounding Round-Up Ready seeds. The case is known as OSGATA v Monsanto. The case’s background states that these groups do not want to use/sell transgenic seeds or glyphosate. However, their concern is that if they do become contaminated they could “be accused of patent infringement by the company responsible for the transgenic seed that contaminates them”.

The intro to the court document explains that in 2011, Organic seed growers went before a judge in the Southern District of New York asking that the patents be judged “invalid, unenforceable, and not infringed”. They claimed that they had started growing conventional produce since the threat of contamination from GMO was so high. They had to take expensive precautions such as creating a buffer zone, so that they wouldn’t be sued by Monsanto. One grower testified to the fact that the only reason why he grows conventional seeds is the threat of a lawsuit from Monsanto, and if this threat didn’t exist then he would go back to growing organic seeds. So, in April 2011, these growers requested Monsanto to “expressly waive any claim for patent infringement [Monsanto] may ever have against [appellants] and memorialize that waiver by providing a written covenant not to sue.” OSGATA, et al claimed that they felt at risk of being sued by Monsanto if their fields were ever found to be contaminated with Monsanto’s patented GMOs.

At the heart of the issue was the fact that Monsanto’s promise to never sue a farmer whose fields have been (unknowingly) contaminated by their seeds was a statement on the company website. It wasn’t a law. It wasn’t something that they had sworn to under oath. It was just something on their webpage which, at the end of the day, could be false advertising or a PR gimmick. In back-and-forths between lawyers, Monsanto wrote that they have no reason to go after farmers for low level contamination because there’s no financial incentive, and that if the motives of the growers/farmers is true (i.e. that they don’t intend to use/sell transgenic seeds), then their fear of a lawsuit is unreasonable. The judge in the district court threw out the case in 2011 based on the fact that “these circumstances do not amount to a substantial controversy and . . . there has been no injury traceable to defendants”.

The case then went to the United States Court of Appeals for the Federal Circuit, whose court documents are the ones I’m summarizing. The discussion states that it isn’t sufficient to demonstrate that a patent is owned by someone and that there’s a risk of infringement: you have to actually demonstrate that there’s a substantial risk that harm may occur or that they have to go through expenses/costs to mitigate those risks. In other words, the judge asked the organic growers/seed distributors to demonstrate that there was the possibility that they might get sued for inadvertent contamination.

The 2 pages of appellants in the lawsuit in the OSGATA case

The Organic growers/seed distributors (OSGATA) conceded that Monsanto had never threatened to sue them. OSGATA stated that their fear is based on the fact that Monsanto has taken 144 growers/sellers to court and settled 700 additional cases out of court. Monsanto argued that none of these cases have been due to inadvertent contamination, and consequently, it was not equivalent to suing for inadvertent contamination.
However, the court conceded that given the way patent laws are written, even using a small amount of a patented material without authorization could constitute patent infringement. For the purposes of the appeal, the judge proceeded with the ruling based on the assumption that inadvertent contamination, including cross-pollination, was inevitable (the court document clarified that this was an assumption, not a ruling).

The documents state that the whole argument was moot if Monsanto really didn’t intend to sue: the Supreme Court has recognized that a covenant not to sue nullifies a controversy between parties. Since Monsanto had a written policy on their website against inadvertent contamination, the court documents recorded Monsanto’s position on this whole argument. Monsanto and the organic growers agreed that “trace amounts” meant approximately 1% contamination. The ruling states that although this was not a covenant not to sue, it had a similar effect and constituted a judicial estoppel, which means that Monsanto could no longer contradict something that’s been established as truth by itself and by the court.

OSGATA stated that Monsanto’s refusal to provide a covenant had a “chilling effect” and that farmers/growers would have to forgo the activities that they would have otherwise liked to pursue. The judge stated that a “chilling effect” wasn’t something tangible, that the appellants needed to have something more specific than that, and that the future harm described was speculative and hypothetical.

The court ruling ends with this statement in the concluding paragraph: “the appellants have alleged no concrete plans or activities to use or sell greater than trace amounts of modified seed, and accordingly fail to show any risk of suit on that basis. The appellants therefore lack an essential element of standing.”

Conclusion

The organic movement considered this case to be a partial victory because they now had in writing that Monsanto would never sue them for inadvertent contamination. But I’m not sure I understand this… I think you’d have to be so paranoid about what Monsanto might do that you’d be willing to incur massive legal fees to make sure that a hypothetical never happens, even when you can’t produce proof that it might.

So how is it that this myth about Monsanto suing farmers still circulates? Based on the movie “David vs Monsanto” described in part two of the series, you could believe that Monsanto plants evidence and works with testing companies to ensure that you your testing is >1%. You could believe that the 700 court cases that were settled out of court were against farmers who were inadvertently contaminated, but just didn’t have the money to fight Monsanto in court. You could also believe that all the court cases had judges and witnesses who were paid off by Monsanto.

My perspective on this is that Monsanto is a huge company that has better things to do than to sue the small farmer who inadvertently uses their seeds. From a practical perspective, it would probably represent a greater expense to them in legal fees than what they would recoup through the settlement or a court case. As I described in the last post, even in cases where Monsanto has taken farmers to court for knowingly using Monsanto seeds without an agreement, there have been massive amounts of negative publicity for the company. Imagine the uproar if they took a farmer to court who genuinely had no idea that his/her field was contaminated.

To conclude this series, I have found no evidence that farmers are sued by Monsanto for inadvertent contamination. The lawsuits that I examined were for cases where farmers knowingly and admittedly used Monsanto seeds without licensing contracts. The fact that seeds are patented is not exclusive to GMOs: as outlined in the first post, many other traditionally bred seeds are patented. For some seeds, both genetically engineered and traditionally bred, farmers sign annual contracts with seed developers. However, farmers have many choices and in no way are forced to plant these seeds or sign these contracts.

Biological Pest Control Basics

Written by Mike Bonds

Managing pests is an important part of cultivating plants whether you are tending a small garden in your yard or several fields of crops. Insect predators can make short work of healthy plants, particularly if insect predators are in abundance. The good news is that there are natural ways to combat these pests that growers have been utilizing for many years. Granted, not all solutions are created equal. There are a number of reasons why biological control efforts may fail; including breeding being out of sync or the countermeasure not being strong enough.
The primary points of biological pest control are:

Classic Biological Control
Conservation
Augmentation

Each offers its own pros and cons with success hinging on a large number of factors that is impossible to completely define. Even still, these methods have traditionally been effective for a number of growers and have been used since the dawn of farming. Continue reading “Biological Pest Control Basics” →

Don’t Mimic Nature on the Farm, Improve it

320px-Thomas_Cole_The_Garden_of_Eden_Amon_Carter_Museum — The Garden of Eden by Thomas Cole. Public Domain via WikiMedia.

Behind many efforts to make agriculture more sustainable is the idea that our farming systems need to be more like nature. According to agroecologist Miguel Alteri, “By designing farming systems that mimic nature, optimal use can be made of sunlight, soil nutrients, and rainfall.” This strategy arises from a long history of thinking that there exists a “balance of nature.” This idea has greatly influenced how we look at nature¹ and agriculture. In the latter case, it drives much of what is done in organic farming and agroecology, but also finds its way into no-till farming. Nonetheless, it is false, and because it is false we can abandon the restrictive “nature knows best” argument in designing agricultural systems. Instead, we can improve on nature. Continue reading “Don’t Mimic Nature on the Farm, Improve it” →

Organic Farming Reliant on Synthetic Nitrogen

A number of studies have suggested that organic farming better addresses issues related to climate change than non-organic farming. Many of the reported climate change advantages of organic farming flow from its prohibition of synthetic fertilizers and exclusive use of organic fertilizers. In the debate over the future of agriculture, organic food proponents have been using these results to support their arguments. One such statement is found in the Organic Farming Research Foundation’s August 2012 publication Organic Farming for Health and Prosperity which states “…organic farming has been shown to effectively mitigate climate change by increasing carbon sequestration in the soil, reducing greenhouse gas release and consuming less fossil fuel.” In comparison to non-organic farms, most of the climate change mitigation benefits of organic farms “were due to the high energy demand and emissions associated with the production of synthetic fertilizers used in the non-organic system.”
Since organic farming uses organic sources of plant nutrients, like animal manure or fish byproducts, it disassociates itself from the energy inputs and greenhouse gas production associated with synthetic fertilizer production, or does it?
I assert that organic farming, as it is practiced now in the US, is largely reliant on the very synthetic fertilizers and the confined animal feeding operations that it prohibits. The link in this reliance is animal manure and the key nutrient is nitrogen.
Nitrogen is the most limiting nutrient for global food production, and therefore the most important. Although the air is full of nitrogen, it is unavailable to plants until it is “fixed” in a form available to plants, such as ammonia. Nitrogen can be either biologically fixed or chemically fixed. Biological fixation occurs in legume plants and is the avowed source of nitrogen in organic farming.
Chemical fixation of nitrogen is done through the Haber-Bosch process, which currently uses natural gas to produce nitrogen fertilizer. This energy intensive process is one of the main sources of greenhouse gas emissions associated with non-organic farming. See Adam Merberg’s post for more details and links.
To see the reliance of US organic agriculture on this chemical fixation of nitrogen fertilizer, one has only to follow the element back to its source and then determine if it was fixed biologically or chemically. The basic steps going backwards are manure Darwinian agriculture, Scaling Up has an example). Most of the nitrogen is conserved in this process (60% of the nitrogen in dairy cow feed ends up in the manure), going from soil through crop and animal to the manure. So the source of the nitrogen in the manure is determined by the source of fertility for the crops used to feed the livestock. Since the nitrogen in the manure from non-organic farms comes mainly from synthetic nitrogen fertilizer, it is mostly fixed chemically. The route that the nitrogen takes between being chemically fixed and ending up in the manure does not change this. Chemically fixed nitrogen processed through livestock is still chemically fixed.
The problem occurs because the USDA organic standards designate manure, whether from organic or non-organic livestock production, as an allowed “organic” fertilizer, presumably because it came from a living organism. This means that, in the US, organic farmers are permitted to use manure from non-organic feedlots, chicken houses, pig barns, and fish farms. Often, the manure is processed (composted, pelleted, etc.) between the non-organic source and the organic farm, but this does not change the source of the nitrogen in the final product. Furthermore, most of this manure comes from confined animal feeding operations, which are prohibited under organic standards. These operations benefit organic farms by concentrating the manure, allowing it to be more easily collected than it is in grazing systems. The manure is then used on many organic farms where it is often their main source of nitrogen.
This system allows organic proponents to claim that they are free from all the downsides of synthetic fertilizer production while also claiming all the benefits of using manure for their system. However, this is clearly not accurate. As long as organic farms are allowed to use manure from non-organic farms, they are reliant on chemically fixed nitrogen.
Some may object that I am ignoring the on-farm fixation of nitrogen by legumes. While it is true that some organic farmers try to produce much of their nitrogen in this manner, I maintain that most of the large organic farms that make up the majority of organic acres and production, do not utilize biological nitrogen fixation to any significant extent. Furthermore, even if the manure being imported from non-organic farms contains mostly legume-fixed nitrogen, this nitrogen is often dependent on synthetic fertilizers supplying phosphorus and potassium to the legumes, without which they would fix much less nitrogen.
Ultimately, what is at stake here is the choice of what path agriculture takes in the future. If we are to make good decisions about the tradeoffs of various farming systems for dealing with climate change, increased global food requirements, and energy needs, then we need to understand the complete life-cycle impacts of each system. For true accounting in energy comparisons, sustainability comparisons, discussions of the productivity of organic agriculture, and the possible future paths of agriculture, knowing that US organic agriculture is reliant on the use of synthetic fertilizers (especially nitrogen) by non-organic farmers is important.
There is a remedy to this. Organic marketers and proponents could acknowledge that they too have challenges in addressing climate change. A step in this direction would to change the USDA Organic rules to prohibit the use of manure from non-organic farms. If organic farms were to use only manure that came only from organic livestock production, which itself relies exclusively organic feeds, this would close the organic nutrient loop. The organic food industry would then be able to support their claims of addressing climate change with regard to nitrogen source.
First posted October 9, 2012, at Perspectives on Sustainability.

Study shows soil-building benefits of manure and crop rotation, so why didn’t they say so?

The secret to building soils is… wait for it… manure and diverse crop rotation. Underwhelmed? Researchers in Iowa (Delate et al, 2013) came to this result after conducting ten years of field research. Only this wasn’t their conclusion. Instead, the headline of the Leopold Center press release reads: “Iowa State study shows soil-building benefits of organic practices.” This is misleading for two reasons. Continue reading “Study shows soil-building benefits of manure and crop rotation, so why didn’t they say so?” →

An Unlikely Fix: nitrogen fertilizer and organic agriculture

Global nitrogen consumption in the 20th century

Written by Adam Merberg

In 1898, the chemist and physicist William Crookes devoted his presidential address to the British Association for the Advancement of Science to “a life and death question for generations to come.” At existing rates, he argued, the world’s wheat crop would cease to be able to feed the world’s wheat-eating people within a few decades. Crookes based his forecast on an estimate of the amount of nitrogen available for the growth of wheat crops. For centuries, farmers had observed that land would become less productive when it was planted year after year. With the advent of modern chemistry, scientists came to understand that these declining yields resulted from dwindling levels of nutrients in the soil as these substances were taken up by crops and removed from the land at harvest.

Rhizobia fix nitrogen in nodules of the roots of legumes. — Rhizobia fix nitrogen in nodules of the roots of legumes (soybean pictured). Photo copyright International Institute of Tropical Agriculture. Used under Creative Commons License.

All life requires nitrogen, which is an important component of many vital molecules, including DNA and proteins. Elemental nitrogen makes up nearly four-fifths of the earth’s atmosphere, but plants and animals can’t use nitrogen in that form. Before atmospheric nitrogen can be used by plants or animals, it must be converted to the biologically available form, or “fixed.” In Crookes’ day, virtually all of the biologically available nitrogen had been fixed by microorganisms known as diazotrophs, such as the bacteria of genus Rhizobia in the roots of legumes like beans, clover, and alfalfa. European and North American farmers had begun augmenting yields by importing nitrogen-rich bat guano from Peru and sodium nitrate from Chilean mines. However, these were not unlimited resources, and Crookes reasoned that unless something were to change, the lands available for wheat cultivation would cease to be able to produce enough wheat to meet world demand by the 1930s.
Continue reading →

Rachel Carson’s dream of a science-based agriculture may come as a surprise to those who believe that sustainability and technology are incompatible.

The ‘Frankenfoods’ debate is coming to your dinner table. Just last month, a mini-war developed in Europe, when the European Union’s chief scientist, renowned biologist Anne Glover, said that foods made through genetic engineering, such as soy beans—about 80 percent of US grown soybeans have been genetically engineered —are as safe as organic or conventional foods.

It’s a wholly uncontroversial comment—at least among scientists. But it set off the usual scare mongering from Friends of the Earth, and other like-minded advocacy groups that finds all genetically engineered (GE) foods and crops to be, in their words “stomach turning.”

The incident is also adding fuel to the California wildfires—no, not the ones caused by the drought—but the incendiary debate over a fall ballot initiative that would require warning labels on all foods with GE ingredients, despite the fact that all established health and science groups such as the American Medical Association, the National Academy of Sciences and the World health Organization have rejected claims that genetically engineered crops or foods pose additional risks or have altered nutritional profiles as compared to foods derived from conventional genetic alteration.

This debate is particularly poignant because fifty years ago this September, with the publication of Silent Spring, Rachel Carson launched the modern day environmental movement by shining a harsh light on the over use of technology—in that era it was chemicals–in farming.

Continue reading “Rachel Carson’s dream of a science-based agriculture may come as a surprise to those who believe that sustainability and technology are incompatible.” →

Sproutbreak — big media cover up — 50 deaths, nearly 900 maimed with HUS and 4000 sick: sprouts guilty

“Those who cannot remember the past are condemned to repeat it.”(George Santayana). (Here’s *a reminder* for those who have forgotten or do not know.)

Main lessons to be taken from this short history:

The type of food label needed here ?- from Bill Marler

Bean and various other seed sprouts are the suspects. Humans can carry and transmit the germ. The E. coli EHEC germ is spreading to other countries. Disease risks are severe. A serious global epidemic of a deadly disease is possible, even likely if immediate actions are not taken.
Basic hygiene in all parts of fresh vegetable production and use in food needs to be given a thorough review everywhere and improvements communicated widely.
Various special interests are likely to generate irrelevant noise that will obscure these messages getting through to potential victims: this noise should be ignored
To avoid people being harmed, efforts and comments should be focussed on spreading the first two messages .

To understand the crux of this topic people just need to read this single Bloomberg story

Hamburg E. coli Patient Sees ‘Wonder’ as Son Recovers

By Niklas Magnusson – Jun 9, 2011 11:53 AM ET

All else is detail.

But the main details of what we know now follow for the more curious reader.

Continue reading “Sproutbreak — big media cover up — 50 deaths, nearly 900 maimed with HUS and 4000 sick: sprouts guilty” →

Speedy tweets matter for science, and fimbriae hairs matter for death and disease from lethal German EHEC E. coli germs

…[The German outbreak bacteria form ﬁmbriae [pili].” Fimbriae are small tentacles that help EAEC bacteria stick to the intestinal wall. This could lead to a stronger colonization of the gut and more toxin being released into the body.

Speed matters: Scientists Rush to Study Genome of Lethal E. coli

…an armada of scientists around the world who are analyzing available genomic data on the ﬂy and, via tweets, wikis, and blogs, disseminating results online. “I am really surprised and impressed at how fast this is developing,” says Holger Rohde, a microbiologist at the University Medical Center Hamburg-Eppendorf. “I think it shows how relevant this platform can be to science.
The picture emerging from these ﬁrst analyses is surprising:

Continue reading “Speedy tweets matter for science, and fimbriae hairs matter for death and disease from lethal German EHEC E. coli germs” →

Oxfam should get serious about malnutrition: Africa needs roads and nitrates

A recent UK Times opinion piece by rational optimist Matt Ridley has really hit the nail of the head about food security, linking together many issues that are repeatedly tackled at this website.
The value of fertiliser.
The needs of Africa.
The tragedy of NGOs that harm people they want to help.
Problems and delays caused by of tying up innovation with over-zealous regulation.
Even the dangers of manure, with the risk of diarrhoea and death from faecal germs like pathogenic E. coli, as exemplified by the dreadful disaster playing out in Germany at the moment.
Oxfam are indeed trying genuinely hard to tackle the big and complex issue of food security. At least they understand there is a problem with the supply of food. Others chant incessantly the inane phrase “but the world has plenty of food”, as if the food supply automatically keeps pace with the ongoing growth in global food demand driven by population and wealth increases.
But Oxfam get things so wrong about technology and innovation.The bigger tragedy is that they are not alone in this, but that’s another story.
Matt Ridley: Why Oxfam Is Wrong On Food The Times, 2 June 2011, UK
Continue reading →