Oregon Bill Would Create Trespass Cause of Action for Landowners Against GMO Patent Owners
Written by Rebecca L. Wright, Ph.D. and Eric Furman, Ph.D.
In an ongoing set of disputes in Oregon between farmers and corporations that hold GMO patents, farmers may be given a new tool. Oregon House Bill 2739[1] “allows a cause of action against the patent holder for a genetically engineered organism present on land without permission of the owner or lawful occupant”. Thus, in a turnaround from a series of patent infringement lawsuits aimed at farmers for the sometimes inadvertent presence of GMO crops in their fields, farmers would now have standing to bring a lawsuit for the presence of those same GMO crops.
One can surmise that the new bill could be an effort to level the playing field after cases such as Organic Seed Growers and Trade Association v. Monsanto[2]. In OSGTA v. Monsanto, the Federal Circuit declined to definitively rule that farmers were protected from patent infringement lawsuits based the inadvertent presence of GMO crops in their fields. The Federal Circuit also found no justiciable case or controversy when OSGATA sought declaratory judgments of non-infringement and invalidity with respect to 23 patents held by Monsanto. The court cited Monsanto’s binding assurances that it would not “take legal action against growers whose crops might inadvertently contain traces of Monsanto biotech genes (because, for example, some transgenic seed or pollen blew onto the grower’s land)”[3]. The case reveals, however, that trace amounts are defined as up to one percent of seeds carrying Monsanto’s patented traits.[4] Additionally, the court stated that “ we cannot conclude that Monsanto has disclaimed any intent to sue a conventional grower who never buys modified seed” and “Monsanto’s counsel was quite careful never to represent that Monsanto would forgo suit against a grower who harvested and replanted windblown seeds—even if that grower gained no advantage by doing so.”
Thus, proposed Oregon House Bill 2739 represents an opposing view on the presence of inadvertently placed GMO crops. Supporters of House Bill 2739 believe that damages due to the trespass by GMO crops should be subject to the same compensation as any other type of trespass action. One farmer cited that bentgrass that has been genetically engineered to tolerate glyphospate herbicides caused damage in Eastern Oregon and that the patent holder should be responsible for the damages.[5] Additionally, genetic testing can be used to easily find the responsible party.
Those opposed to House Bill 2739 foresee a stifling of plant patents and innovation in the plant breeding industry in general. Specifically, critics point out that House Bill 2739 punishes patent holders for the actions of end users.5 Critics also foresee companies being discouraged from offering new, innovative products in Oregon. Another criticism parallels arguments made in inadvertent infringement lawsuits since natural forces, which are often beyond human control, may determine the placement of seeds. Accordingly, House Bill 2739 represents yet another step in the ongoing and unresolved disputes between farmers and GMO patent holders.
[1] Available at http://gov.oregonlive.com/bill/2017/HB2739/
[2] 12-1298 (Fed.Cir. June 10, 2013) (available at http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/12-1298.Opinion.6-6-2013.1.PDF)
[3] Defs.’ Mem. of Law in Supp. Of Mot. To Dismiss at 5, Organic Seed Growers & Trade Ass’n v. Monsanto Co., 851 F. Supp. 2d 544 (S.D.N.Y. 2012) (No. 11-CV-2163)
[4] Organic Seed Growers and Trade v. Monsanto 12-1298 (Fed.Cir. June 10, 2013) at 16.
[5] See http://www.eastoregonian.com/eo/capital-bureau/20170317/bill-would-authorize-gmo-trespass-lawsuits-against-patent-holders.