Have farmers been sued because Monsanto seeds are blowing into their fields?

Question

This article argues that small farmers are being hurt because Monsanto are allowed to sue farmers whose fields are found to contain crops grown from Monsanto seeds when royalties were not paid. Many farmers claim these seeds had blown into their fields.

Private and family farmers are able to decide whether they will be using GMOs or non GMOs for their crops, or they can choose to be organic. However, if Monsanto’s GMO seeds are to blow over the fence from a Monsanto farm to a farm that does not use Monsanto’s seeds, Monsanto sues the farmer.

A Supreme Court case in 2011 ruled against 80 farmers that were working to prohibit Monsanto from suing farmers who have inadvertently had their fields contaminated with Monsanto seeds. Because the farmers are being sued at such a high rate and for so much money, Monsanto has the capability of causing many farmers to go bankrupt, literally.

An article in RT claims that Monsanto will only sue farms whose fields contain over 1% Monsanto crops when royalties were not paid.

The US Supreme Court upheld biotech giant Monsanto’s claims on genetically-engineered seed patents and the company’s ability to sue farmers whose fields are inadvertently contaminated with Monsanto materials.

The high court left intact Monday a federal appeals court decision that threw out a 2011 lawsuit from the Organic Seed Growers and Trade Association and over 80 other plaintiffs against Monsanto that sought to challenge the agrochemical company’s aggressive claims on patents of genetically-modified seeds. The suit also aimed to curb Monsanto from suing anyone whose field is contaminated by such seeds.

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In a June 2013 ruling, the US Court of Appeals for the Federal Circuit in Washington, DC said it was inevitable, as the farmers’ argued, that contamination from Monsanto’s products would occur. Yet the appeals panel also said the plaintiffs do not have standing to prohibit Monsanto from suing them should the company’s genetic traits end up on their holdings "because Monsanto has made binding assurances that it will 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).'"

Are farmers being sued because they legitimately had seeds blow into their fields?

Answer 1

Schmeiser, the farmer in the original case, noticed one year that a section of his crop was not killed by Roundup. He saved the seed from that section and planted his crop following year with that seed. That resulted in over 95% of his crop being Roundup ready.

The trial judge rejected the suggestion that it was the product of seed blown or inadvertently carried onto the appellants’ land.

That was a finding of fact in the Schmeiser case: the 95-98% coverage of Roundup ready crop on Schmeiser's land was not the result of scattering due to wind.

The court did not hold that "it didn't matter how Monsanto's genetically altered canola got into [the] field". How the patented canola got into 95-98% factored heavily in the decision. Had Schmeiser not intentionally planted this stuff, he could have rebutted the presumption of use:

a defendant in possession of a patented invention in commercial circumstances may rebut the presumption of use by bringing credible evidence that the invention was neither used, nor intended to be used, even by exploiting its stand-by utility.

Source: The judgement of the Supreme Court of Canada in Monsanto Canada Inc. v. Schmeiser, [2004] 1 S.C.R. 902, 2004 SCC 34

Monsanto hasn't sued a single person for wind-blown seed. In fact, the first thing they will do for a farmer in this situation is offer to destroy/retrieve the plants.

The Salt NPR Blog: Top Five Myths of Genetically Modified Seeds Busted:

A group of organic farmers, in fact, recently sued Monsanto, asserting that GMOs might contaminate their crops and then Monsanto might accuse them of patent infringement. The farmers couldn't cite a single instance in which this had happened, though, and the judge dismissed the case. [...] The company asserts, in fact, that it will pay to remove any of its GMOs from fields where they don't belong.

Skeptic's Guide to the Galaxy Podcast Excerpt: Monsanto Myths

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"The US Supreme Court upheld biotech giant Monsanto’s claims on genetically-engineered seed patents and the company’s ability to sue farmers whose fields are inadvertently contaminated with Monsanto materials."

It is a pet peeve of mine when media misconstrues the holding of a court decision, so I'll spend quite a bit of time dissecting this part of the question.

I can't prove a negative, but to the best of my knowledge (I've followed this area closely for years), the US Supreme Court have never upheld Monsanto's "ability to sue farmers whose fields are inadvertently contaminated with Monsanto materials". To the best of my knowledge, this question has never reached the US Supreme Court. The most relevant cases are Organic Seed v. Monsanto and Bowman v. Monsanto. The court denied certiorari to Organic Seed v. Monsanto. It left intact this decision by the CAFC. In Bowman v. Monsanto, the question was regarding intentional use, the first-sale doctrine, patent exhaustion, and the patent holder's exclusive right to make the patented invention.

If anything, leaving the CAFC decision intact acts against Monsanto's ability to sue farmers:

Monsanto has made binding assurances that it will 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)

If we rely on Monsanto’s representations to defeat the appellants’ declaratory judgment claims (as we do), those representations are binding as a matter of judicial estoppel.

Monsanto even was the one to suggest that:

"if the court writes an opinion that relies on the representations that I made in my letter, in response to their letter, then I think it would be binding as a matter of judicial estoppel" (quoting from Monsanto's representative at oral argument)

The conclusion was:

In sum, Monsanto’s binding representations remove any risk of suit against the appellants as users or sellers of trace amounts (less than one percent) of modified seed. The appellants have alleged no concrete plans or activities to use or sell greater than trace amounts of modified seed, and accordingly fail to show any risk of suit on that basis. The appellants therefore lack an essential element of standing.

Basically, Organic Seed Growers wanted a declaratory judgement in their favour preventing law suits from Monsanto relating to trace amounts of patented product in their fields. Monsanto has promised that they will not sue for trace amounts of patented product in fields, and the Organic Seed Growers have not shown that they use or sell more than would be considered "trace". The court held that Monsanto's promise is binding, so Organic Seed Growers do not have "standing" (a connection to harm).

Answer 2

Monsanto admits to having sued 145 farmers on their website:

Since 1997, we have only filed suit against farmers 145 times in the United States. This may sound like a lot, but when you consider that we sell seed to more than 250,000 American farmers a year, it’s really a small number. Of these, we’ve proceeded through trial with only eleven farmers. All eleven cases were found in Monsanto’s favor.

Their assertion is that these are not cases of seed "blowing onto fields", and, in the sampling of court cases they provide on their website, it's pretty clear that they attempt to find (and generally succeed in doing so) eyewitness testimony and physical evidence that the farmers are intentionally saving seed and replanting it in violation of the agreement they signed to.

So, in all likelihood, No, Farmers are not being sued for seeds blown into their fields.

Answer 3

Monsanto_Canada_Inc._v._Schmeiser says,

All claims relating to Roundup Ready canola in Schmeiser's 1997 canola crop were dropped prior to trial and the court only considered the canola in Schmeiser's 1998 fields. Regarding his 1998 crop, Schmeiser did not put forward any defence of accidental contamination. The evidence showed that the level of Roundup Ready canola in Mr. Schmeiser's 1998 fields was 95-98% (See paragraph 53 of the trial ruling[4]). Evidence was presented indicating that such a level of purity could not occur by accidental means. On the basis of this the court found that Schmeiser had either known "or ought to have known" that he had planted Roundup Ready canola in 1998. Given this, the question of whether the canola in his fields in 1997 arrived there accidentally was ruled to be irrelevant.

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Schmeiser never purchased Roundup Ready Canola nor did he obtain a license to plant it. Yet, in 1998, tests revealed that 95 to 98 percent of his 1,000 acres of canola crop was made up of Roundup Ready plants. The origin of the plants is unclear. They may have been derived from Roundup Ready seed that blew onto or near Schmeiser’s land, and was then collected from plants that survived after Schmeiser sprayed Roundup herbicide around the power poles and in the ditches along the roadway bordering four of his fields. The fact that these plants survived the spraying indicated that they contained the patented gene and cell. The trial judge found that “none of the suggested sources [proposed by Schmeiser] could reasonably explain the concentration or extent of Roundup Ready canola of a commercial quality” ultimately present in Schmeiser’s [1998] crop ((2001), 202 F.T.R. 78, at para. 118).

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Possession of a patented object or an object incorporating a patented feature may constitute “use” of the object’s stand-by or insurance utility and thus constitute infringement. Possession, at least in commercial circumstances, raises a rebuttable presumption of “use”. While intention is generally irrelevant to determining whether there has been “use” and hence infringement, the absence of intention to employ or gain any advantage from the invention may be relevant to rebutting the presumption of use raised by possession. (lexum.com)

He was sued for growing plants, from the seeds harvested from plants, that may or may not have legitimately grown from seeds blown onto his field, while using Roundup for an intrinsic advantage. Using glyphosate as a means to isolate a species with the intention of replanting it constitutes patent infringement, provenance notwithstanding.