A lawsuit filed by a nationwide consortium of farmers against the chemical giant Monsanto concerning genetically modified seeds is headed for court again.

The U.S. Court of Appeals for the Federal Circuit in Washington, D.C., will hear oral arguments in the case on Jan. 10 and is expected to rule within three months of the hearing.

The case questions Monsanto’s legal basis for genetically modified seed patents, and seeks blanket protection from patent-infringement lawsuits for farmers, should their crops be contaminated through unwanted pollination by Monsanto’s genetically altered plants. The plaintiffs include Maine farmers.

By law, certified organic crops cannot contain genetically modified material.

While most of the plaintiffs are organic farmers, some are conventional farmers who farm with seed that hasn’t been genetically modified and face the same risks of contamination.

Genetically modified seeds are protected by patents. Farmers who grow genetically modified crops must buy new seeds each year, and cannot use traditional seed-saving practices.

In February, U.S. District Judge Naomi Buchwald of the Southern District of New York dismissed the case brought by the national, nonprofit Organic Seed Growers and Trade Association, which is based in Washington, Maine, and whose board president is a Maine potato-seed farmer, Jim Gerritsen of Wood Prairie Farm in Bridgewater.

The trade association seeks to have the judgment reversed and the case sent back to federal district court. Monsanto will argue that Buchwald’s decision should stand.

The lawsuit was filed in March 2011 by the trade association and more than 70 agricultural and consumer groups, with legal backing from the Public Patent Foundation, a nonprofit group that works to reduce abuses of the U.S. patent system.

In dismissing the case, Buchwald acknowledged that some of the plaintiffs had stopped growing certain crops for fear of being sued, but ruled that the plaintiffs lacked standing to bring the lawsuit.

The judge also called the farmers’ claims that they could be subject to patent-infringement lawsuits “unsubstantiated” because “not one single plaintiff claims to have been so threatened.”

The plaintiffs claim that Buchwald ignored Supreme Court precedent relating to intellectual property law and patent infringement litigation.

Calling the case one of basic property rights, Gerritsen said, “what our briefs show is that (Buchwald) committed certain legal and factual errors that led her to the wrong conclusion and led her to dismiss the case.”

The trade association’s brief names specific farmers who have stopped growing certain crops for fear of contamination and subsequent lawsuits by Monsanto. The brief also names plaintiffs, including Maine-based Fedco Seeds, that have discovered unwanted genetic contamination when they have sent their seed out for third-party testing.

St. Louis-based Monsanto has maintained throughout the case that it doesn’t sue farmers whose crops are inadvertently contaminated by its genetically modified seeds. Representatives of Monsanto did not return calls seeking comment on Friday.

In a statement issued after Buchwald dismissed the lawsuit, Monsanto said the judge’s ruling “makes it clear that there was neither a history of behavior nor a reasonable likelihood that Monsanto would pursue patent infringement matters against farmers who have no interest in using the company’s patented seed products.”

According to a report from the Center for Food Safety, a nonprofit environmental advocacy group based in Washington, D.C., Monsanto annually investigates about 500 farmers for possible patent infringement. The same report says Monsanto sued 144 farmers from 1997 to 2010, and settled 700 cases out of court in that period.

The trade association is raising money to enable its member farmers to go to Washington, D.C., to hear the oral arguments in January. During oral arguments this year in New York, 60 farmers from more than 20 states and Canadian provinces filled the courtroom.

 

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