Organic Seed Growers v. Monsanto: BIO and CLA File Amicus Brief

 

BIO and CLA submit this brief in support of the decision below, and also to

counter the troubling and unsubstantiated assertions of the amici in support of the

Appellants.  BIO and CLA reject the proposition that this Court’s recent

declaratory judgment standing cases have departed from guiding Supreme Court

precedent.  Equally important, BIO and CLA reject the proposition of amicus

Intellectual Property Professors (“IPP”) that patent validity issues warrant a

departure from, and essentially a dilution of, traditional standing requirements.

 

Appellants seek to invalidate 23 patents on which Defendants-Appellees’

(“Monsanto”) products depend.  To gain access to the Federal Courts, Appellants

must first demonstrate that they meet the constitutional requirement of having an

actual “case or controversy” with Monsanto. See U.S. Const., art. III, §2.  To meet

this requirement, Appellants claim to be actually injured by Monsanto because

they are presently forced to abstain from growing certain non-transgenic crops, and to incorporate burdensome genetic testing into their business operations, in order to mitigate their risk of being sued for patent infringement by Monsanto.   See Appellants’ Br. at 15.  At base, Appellants assert that their fields or products will inevitably be contaminated with Monsanto’s product, and fear that Monsanto will then sue them for patent infringement.  See Opinion at A4, A6-7.  However,

several facts, if correctly determined by the district court, temper these assertions:

 

1) Appellants are not currently contaminated with Monsanto product and

do not seek to use transgenic seed;

 

2) Monsanto is not currently threatening to sue any party;

 

3) Monsanto has not sued or threatened to sue any similarly situated

party;

 

4) Monsanto has publically stated that it is not its policy “‘to exercise

[their] patent rights where trace amounts of our seed or traits are

present in [a] farmer’s fields as a result of inadvertent means.’”; and

 

5) Monsanto informed Appellants that their fear of being sued was

“unreasonable.”

 

BIO and CLA further note that there does not appear to be an allegation that a

contamination, if it occurred, would occur within the term of any patent-in-suit. 

Absent an in-term contamination, no fear of litigation can exist.  Appellants’ claim of injury is thus premised on the notion that they are “coerced” into foregoing the full enjoyment of their land and property in order to mitigate the risk that (i) they could inadvertently become contaminated with Monsanto product, (ii) at some future point in time; (iii) which could be during the term of a challenged patent; and that (iv) Monsanto might then renege on its policy of not enforcing its patents against precisely such inadvertent contamination, and (iv) could decide to sue one of them.

 

To be sure, Appellants express great fear that such a string of contingencies

might come to pass and subject them to patent enforcement by Monsanto.  But

purely subjective fear of some future, uncertain event is insufficient to constitute a

present, concrete injury.  Nor does acting on such fear - e.g., by abandoning the use

of land or adopting expensive testing - transform a hypothetical, future injury into

an actual or imminent one.  There is a difference between a self-inflicted injury and

an injury that can reasonably be traced to “the objective words and actions of the

patentee,” as the district court correctly acknowledged.  What remains, then, of

Appellants’ claim, is not a present injury that can fairly be traced to the patentee,

but fear of a future injury that may or may not materialize, depending on numerous

contingencies.  For good reasons discussed below, no court has ever found standing on such attenuated facts.