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Monsanto Appeal Heard

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This article comes from the NOFA/Massachusetts 2013 January Issue Newsletter

By Jack Kittredge NOFA / Mass policy director

The suit by organic and non-GMO seed companies,
farmers, and farmer organizations against Monsanto
has entered a second stage. The suit was dismissed by
the original trial judge last spring on the basis that the
plaintiffs did not have “standing” – had not been injured
enough to need to seek judicial relief. Most of the
plaintiffs agreed to appeal that dismissal, however, and
the oral arguments for that appeal were heard on January
10, 2013 in Washington, DC.
 
One of the arguments which Monsanto had made to
the original trial judge was that this suit was frivolous,
essentially a P.R. stunt designed to harass Monsanto, and
no one was seriously affected by it. In response, some
two dozen of us plaintiffs, from all over the US and
Canada, came to Washington to fill the empty seats in
the courtroom and give silent testimony of our level of
concern.
 
The appeals court at this level is composed of three
random judges from a panel of twelve. We didn’t know
which judges we would get until the morning of the
hearing. Oral arguments are short and peppered with
questions from the judges, who have carefully read the
reams of “briefs” (which are anything but brief) submitted
by both sides. I was impressed at the informality of the
proceedings and the way the judges interrupted attorneys
with stiff questions and challenges. Anyone interested in
the 38 minutes of oral arguments in this case can listen to
a MP3 of them at
aspx?fl=2012-1298.mp3.
 
Dan Ravicher, our attorney, released this statement after
the hearing:
 
“We had oral argument in our appeal of Judge
Buchwald’s dismissal of our case today. The three Court
of Appeals judges assigned to our case are Judges Dyk,
Bryson and Moore. They are all three very experienced
appeals judges and if you want to see more about their
 
The bad news is that Judges Bryson and Moore were
two of the three judges who heard our case challenging
patents on human genes (the AMP case) and they held
in that case that only parties who have been directly
threatened by a patent holder have standing to bring
a declaratory judgment case against the patent holder.
If they apply that rule to our case, the two of them will
affirm the dismissal, as we concede that none of our
plaintiffs have been directly threatened by Monsanto. We
argued why that rule should not apply, but it may be hard
for them to change their view. The third judge is actually
a very good judge for us, as he believes there is a strong
public policy in favor of allowing the public to bring
declaratory judgment cases to challenge invalid patents.
 
Therefore, I think it is quite possible that we will receive
a 2-1 decision affirming the district court’s dismissal. I’m
hopeful Bryson and/or Moore will change their
perspective and that we will receive either a 2-1 or 3-0
decision reversing the district court and reinstating our
case, but if the Court of Appeals does indeed affirm the
dismissal, our next step will be to ask the Supreme Court
to take the case. The good news for us on that is that
the Supreme Court has this term taken a case involving
Monsanto’s GMO seed patents (the Bowman v Monsanto
case) and another case involving the issue of standing to
challenge intellectual property (the Already v Nike case).
Since they seem interested in the two issues involved in
our case, I think our odds of getting the Supreme Court
to take our case would be higher than normal, although
still extremely remote.
 
If the Court of Appeals wants to affirm the district
court’s dismissal without any explanation, they will issue
a short decision within the next few days that only says:
“affirmed”. If they believe the case merits a written
opinion, it will take them roughly 2-4 months to issue
one. As soon as we hear a decision from the court, we will
of course let you know.
 
If the Court of Appeal reverses the district court’s
dismissal, then they will remand the case back to Judge
Buchwald. Monsanto has said that if that were to
happen, they intend to make a motion to transfer our
case to St. Louis. Since it seems Judge Buchwald does not
like our case, it is likely that she would grant their motion
to transfer.”
 
A rally had been organized after the hearing at which
about 200 people turned out in support of the farmers
suing Monsanto. Besides urging us to make phone
calls to the White House urging mandatory labeling
of GMOs, speakers also called for opposing the FDA’s
imminent release of transgenic salmon – despite the lack
of independent studies of the impact of such a release on
either human health or the environment.
 
The mood at the rally was upbeat, the weather was
good, and speaker after speaker, many just farmers and
seed savers, told of the support they were carrying to us
from people all over the country who are more and more
concerned about GMOs. Between the suit, state efforts
to mandate labeling through legislation or initiative, and
individual decisions to stop buying GMOs or animal
products that have been raised with them in any form,
participants expressed optimism that we are slowly
winning the battle to defeat biotechnology in agriculture.
Stay tuned!
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