June 12, 2013

Were You Watching the Same Lawsuit I Was?


(The same kind of lawsuit the government is going to stop allowing.)
“The decision today means that the farmers did have the right to bring the suit to protect themselves…”
News flash: The courts have been laughing in your face and calling you pathetic losers. Judging by your response so far, that’s exactly what you look like.
You know perfectly well that Monsanto’s “assurance” means nothing. (And why would human beings with any dignity be willing to live under the dominion of such a condescending piece of noblesse oblige even if it were sincere?) You know that Monsanto will never stop until it wipes us out.
So now that you know you cannot get justice from the courts, NOW what are you willing to do?
Are you at least willing to think about that question?
Plaintiffs’ attorney, Dan Ravicher of the Public Patent Foundation (PUBPAT), views the decision as a partial victory. “Before this suit, the Organic Seed plaintiffs were forced to take expensive precautions and avoid full use of their land in order to not be falsely accused of patent infringement by Monsanto,” said Ravicher. “The decision today means that the farmers did have the right to bring the suit to protect themselves, but now that Monsanto has bound itself to not suing the plaintiffs, the Court of Appeals believes the suit should not move forward.”
Hmm, I missed that part. I only saw the part where they said “You DO NOT have the right to sue, period. But you can take solace in Monsanto’s magnanimous gesture, far more than you deserve, I’m sure.”
Why would anyone think this decision preserves any civil right or liberty, or imposes any constraint on Monsanto whatsoever? On the contrary, it enshrines the Hobbesian might-makes-right of corporatism, while paying lip service to the notion that corporations may voluntarily choose to place limits on their license, if and only if it’s their pleasure to do so. But the principle that the corporate imperative is literally limitless, and that government has no mandate or warrant to impose any such limits, and that the people have no right to go to the courts for redress, has been legally reaffirmed.
Anyone who still drinks the “good civics” kool-aid, anyone who still believes in the mythical antagonism of government power and corporate power, that governments have any desire or function in limiting corporate power, or that governments are there to “serve the people” rather than the 1%, or that there’s any meaningful distinction between “corporation” and “government” at all, as opposed to the monolithic corporate state which in fact does exist, had better wake up NOW.
NOW what are you willing to do?
(For the record, the Monsanto statement declares that it “has never been” corporate policy to sue organic farmers when they become the victims of GM contamination. But this has always been exactly their policy. Therefore, the “nor will it be” simply means they’ll continue doing exactly what they’ve always done, sue organic farmers when they become the victims of GM contamination.)
I’m writing this to stress again that the only potential benefit of such lawsuits would be if they were conceived primarily as vehicles for public education and permanent grassroots organization. But when they’re run as regular lawsuits trying for an ad hoc “win”, they’re pointless waste.
And when a fenceline patroller like Food Democracy Now engages in lying spin about an outcome, like this headline for its press release from which I quoted above:
“Appeals Court Binds Monsanto To Promise Not To Sue Organic Farmers”
the whole exercise is not just pointless but malign, since its goal is to keep activism fenced within the bounds of system acceptability and practical failure.
Contrast the NGO spin with the headline from the article by Common Dreams (certainly no wild-eyed radicals): “Major Loss to Organic Farmers as Court Rules in Favor of Monsanto”.
(The title of the Common Dreams page carrying the above FDN press release added two question marks at the end of it. I agree, it’s bizarre.)
If anyone doubts or disputes this, then I’ll just ask again:
The courts won’t give justice, so NOW what are you willing to do?
As I’ve said many times before, anyone whose answer boils down to continuing to do what’s already proven to fail is a pro-Monsanto con man running a scam. 



  1. To have standing to sue for declaratory judgment (“DJ”), you must have a reasonable apprehension that the person you sue plans to sue you. The problem for a DJ plaintiff is that the defendant can kill your DJ action unilaterally by making the kind of statements that Monsanto made. This really isn’t new law, and the Federal Circuit judges didn’t seem to be buying everything Monsanto was selling them. See the opinion: http://www.cafc.uscourts.gov/images/stories/opinions-orders/12-1298.Opinion.6-6-2013.1.PDF

    Based on some of the conclusions that were accepted by the Federal Circuit, I think the Organic Seed Growers are developing a good body of binding precedent with which to ultimately succeed against Monsanto. See the opinion starting at page 11. The anti-Monsanto folks just need a better legal theory, if they want to succeed in proactively stopping Monsanto (rather than waiting for Monsanto to sue the “right” farmer).

    Comment by Tao Jonesing — June 12, 2013 @ 8:20 pm

    • I don’t doubt the law can always find a way to deny standing to an underdog plaintiff. But do you really think it’s likely the court cares about any such thing? We just had the “supreme” court declare, happily and unanimously, that “patent exhaustion is SO 80s”, while the doctrine that Article 1 section 8 on intellectual property is nothing but a joke has long been consensus jurisprudence. Why would anyone expect any but a few scattered rogue judges to be conscientious about this? I don’t closely follow the central government courts, but the evidence of the cases I do notice is that legal doctrines, just like laws themselves, are nothing but a tool and weapon, to be used, abused, and disregarded as convenient.

      Comment by Russ — June 13, 2013 @ 6:26 am

      • When it comes to DJ actions, there is nothing new about this one. Almost twenty years ago, I was involved in a DJ action involving patent infringement that was dismissed in the face of far more egregious and overt acts to support standing to sue. All I am saying is that I don’t think the plaintiffs were singled out for pro-Monsanto treatment, that the outcome was pretty consistent with decades of precedent, so I don’t see how I can conclude from the court’s decision was an example of venality.

        Am I saying you’re wrong in the face of everything you know? No, because I have no idea. I’m just looking at this decision in isolation.

        Comment by Tao Jonesing — June 13, 2013 @ 9:28 pm

      • I wasn’t saying the plaintiffs were singled out for pro-Monsanto treatment, and the notion that this court was atypically venal is exactly what I deny. On the contrary, I say the plaintiffs received typical treatment where it’s anyone from civil society up against a large corporation, and that this court decision was typical and in line with what the system’s designed to do.

        The backstory details you’re adding help confirm that it’s foolish to expect lawsuits like this to suffice in any meaningful way. The part where we may disagree is that it sounds like you think they just picked the wrong form of legalism to argue, but that there exists a “right” kind which the courts would accept. But none of the versions of that argument seem to work. For example, many in the raw milk movement are fixated on the notion that there’s a “right” kind of “food safety” compliance which the FDA would accept and which would cause the FDA to lay off. But all the evidence is that there’s no such acceptable compliance (as it is raw milk producers are safe by any reasonable standard), because the FDA doesn’t really care about “food safety”, which is rather a “war on terror” type pretext. On the contrary, it’s a thug which is out to repress raw milk because it’s an increasingly threatening competitor to Big Dairy. And the raw milk persecution, against a relatively “fringe” group, is in turn meant to serve as the template for a contemplated broad assault on the entire community food sector.

        So that’s what I think of when I hear that an anti-corporate plaintiff could get a better result if he made a better argument. What did you think of Bowman’s position? It seems to me that patent exhaustion used to be a well-established principle, and that the system then decided to do away with it for GMOs (maybe for new “intellectual products” in general, while grandfathering in the old regime for older, less critical kinds of products), because this new order of capital accumulation needed a new, broader use of the IP weapon. To the best of my knowledge, the courts accepted all these notions, rather bizarre ones – that plants and seeds can be patented at all, that the patent extends to subsequent generations – without any significant debate or dispute. The government decreed it so, and the courts obeyed. It’s a very good example of how at least passive corporatism (that as a matter of law, equity, and constitutionality, corporate license extends at least as far as the government says it does, and that it’s never the business of the courts to question any further this fourth branch of government which was extra-constitutionally created by the first two branches) is the institutional ideology of all modern Western courts.

        Comment by Russ — June 14, 2013 @ 4:02 am

  2. Russ,

    I thought about some possible legal theories that may be more successful than the DJ claim. The one that should be obvious at this point is a state law nuisance claim. The courts have now found that it is inevitable that Monsanto seeds will contaminate seed stocks. Courts can issue injunctions to abate a nuisance. While the most obvious injunction would be to ban Monsanto from selling its GM seeds, that kind of result is highly unlikely at the present time. An injunction that might be achieved is a ban on Monsanto bringing patent infringement lawsuits against contaminated seed stocks. This presumably could be achieved by requiring an initial showing of both the relatively high present of the patented GM in the seed stock and the pervasive presence of that seed stock throughout the field, i.e., a two level “purity” test.

    The same finding of inevitable contamination also gives rise to a license defense against any downstream patent infringement litigation. Monsanto has authorized the use of its seeds in a manner that it knows will inevitably contaminate. Under such circumstances, both the initial use and contamination are “authorized” for purposes of the patent act, and infringement is not possible (you’d call this either an estoppel or an implied license).

    Comment by Tao Jonesing — June 12, 2013 @ 9:25 pm

    • I agree that all makes sense, but then if the courts made legal sense they’d never have allowed patents on seeds in the first place. (The US government itself says GM seeds and plants are “substantially equivalent” to normal seeds, which is the dogma according to which they never needed any safety testing.)

      Even leaving aside the corporatist judicial activists, how many judges are likely to be willing to override central pre-emption, USDA policy presumptively in favor of the trespasser and tort perpetrator, these decisions endorsing Monsanto’s conduct to date?

      My position can be boiled down to that the people will not get real action from the courts. But it’s true I don’t follow everything that happens in the courts. Can you give any current examples of the courts systematically placing any real restraints on corporate license?

      (On the other hand, if the court, like the USDA, has conceded that contamination is inevitable, that can be a useful fact in the political fight, since the enemy still tries to claim “co-existence” is possible in this sense.)

      As for a legal defense against a license lawsuit, for most of the victims the fact that Monsanto sued them in the first place was already a fatal blow. It’s already malign the way this “adversarial system” is inherently so extremely pro-aggressor. When the aggressor is a powerful corporation and the target is small, the fact of the lawsuit in itself is often decisive, regardless of the merits of the case.

      It’s clear to me that:

      1. Monsanto seeks to contaminate the entire agricultural enviroment.

      2. It aggressively sues organic farmers it knows did not infringe its patents, because it wants to annihilate organic farming as such. This is just one tactic toward that goal.

      3. The courts are aware of this and endorse it. Perhaps the court endorsements are at varying levels of enthusiasm, but no court has deplored it and tried to stop it. This fits into the pattern of judicial “passive” corporatism I described.


      I don’t think the theory of intellectual property Monsanto and the USDA demonstrate, in actions if not in honest declarations, is outside the current mainstream, or any kind of “abuse” the courts are likely to curtail. Intellectual property, like GMOs as such, is a critical genre of corporatist enclosure, profiteering, and domination. It’s a necessary structure, not an ad hoc embellishment.

      It would surprise me if the same jurists who accept a philosophical idiocy and injustice like seed patents in the first place, would then balk at particular tactical applications of this IP aggression. And even if the courts were to curtail this particular tactic, it would still just be represented, by Monsanto and probably by many who support the plaintiffs, who are after all part of the industrial organic complex, that this was a victory for “co-existence” and evidence that this program can work, and that everyone should support it rather than abolition. In a sense it would just put us back in the place where Vilsack and Whole Foods Market would like us to be (with their “co-existence” scheme for GM alfalfa, which was directly overridden by Obama on Monsanto’s order) – still being strangled by Monsanto, just a bit more slowly and subtly.

      Comment by Russ — June 13, 2013 @ 6:49 am

      • Federal preemption would not be an issue as nuisance law does not seek to legislate patent rights. That does not mean, however, that a nuisance action can not give rise to a remedy that curtails Monsanto’s ability to assert its patents. Rights and remedies are two different things, and violation of a state-given right can give rise to a remedy that bars the free exercise of a federal-given right. In fact, I know of recent examples where this has been true (anti-fracking opinions).

        You may be right that the entire system is rigged, but I’m just not quite ready to believe that yet. The problem that the neoliberal, “law and economics” judges face is that their “propertarian” ideology prevents them from ignoring the primacy of property rights, which nuisance law and patent law both claim to protect.

        Comment by Tao Jonesing — June 13, 2013 @ 10:08 pm

      • Are there many such inflexible “law and economics” yahoos? The SCOTUS had no problem being flexible enough to enshrine the pro-corporate but anti-property Kelo doctrine.

        It’s true that according to the accounts I read Monsanto had to put some effort into explaining to Reagan administration “deregulation” zealots what corporatism really is – anything at any moment from total laissez-faire to a total command economy, depending on what serves the corporate imperative.

        At any rate, I’d think standard commerce clause doctrine (most recently aggrandized again in the case of Obama’s poll tax) would be enlisted to smack down any such use of nuisance law which interferes with “commerce” in such a way. If I were either kind of judge, active corporatist or passive, I’d feel comfortable ruling that such a trial decision was an illegitimate interference with “commerce”. I’d never have to say a word about patents vs. nuisances. (If I were a passive corporatist I might piously suggest Congress should clarify this.)


        I heard of at least one good anti-fracking trial decision. I’m not saying one can never get a good decision at trial, but I’d be very surprised if such decisions were upheld on appeal. That brings us back to the question of what the lawsuits are for – are they political exercises or are they seeking real legal redress? I guess people will insist on trying such things for themselves, and some will never stop trying no matter how much contrary evidence piles up. I can’t get over the feeling that a lawyer who tells small organic farmers that the purpose of filing the suit is really to prevent Monsanto from suing them (I stress again, not just from winning a suit, but from filing this kind of SLAPP suit in the first place, because there would be some penalty for doing so), and that there’s a good chance of attaining this as a lasting end, and then puts out such a press release after such a loss, is committing malpractice. But then the farmers ought to know this by now themselves.

        Comment by Russ — June 14, 2013 @ 4:29 am

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