Anti-GMO Groups Ask Supreme Court To Reconsider Standing To Bring Declaratory Judgment Action Against GMO Patent Holder

Recently, a group of 73 organic and conventional farmers, seed businesses, and public advocacy groups petitioned the Supreme Court to review the Federal Circuit's decision that the petitioners lack standing to pursue their Declaratory Judgment Act ("DJA") claim against Monsanto regarding petitioners' potential liability for infringement of Monstanto's patents for transgenic seed or genetically engineered seed ("GE seed"). The Supreme Court's decision as to whether this case is worthy of review may further define standing requirements for declaratory judgment claims.

The petitioners wish to avoid using, growing, or dealing in GE seed. They claim that they face a real risk of being sued by Monsanto for patent infringement because their fields and seed supplies will "inevitably" be contaminated by Monsanto's genetically engineered "Roundup Ready" crop varieties and, as a result, they will unintentionally use the patented GE seed without a license. Thus, to forestall future patent infringement suits, the petitioners filed a declaratory judgment action against Monsanto. Organic Seed Growers & Trade Ass'n v. Monsanto Co., 851 F. Supp. 2d 544, 549 (S.D.N.Y. 2012). The DJA allows a court to "declare the rights and other legal relations of any interested party" so long as there is "a case of actual controversy." 28 U.S.C. § 2201(a). Monsanto moved to dismiss the action, claiming that no "actual controversy" exists. Monsanto argued that it never demanded royalty payments from any of the petitioners or threatened legal action against them, and that "[i]t has never been, nor will it be Monsanto policy to exercise its patent rights where trace amounts of our patented seeds or traits are present in a farmer's fields as a result of inadvertent means." Organic Seed Growers, 851 F. Supp. 2d at 553.

The district court granted Monsanto's motion, finding no evidence of a threat to the petitioners and no actual controversy to resolve. Id. at 556. On appeal, the Federal Circuit affirmed, agreeing that Monsanto's statements that it would not pursue claims against those who inadvertently use or sell seed that contains trace amounts of the GE seed (1% or less of the total seed) are similar to a covenant not to sue, and thus moot a declaratory judgment action. Organic Seed Growers & Trade Ass'n v. Monsanto Co., 718 F.3d 1350, 1358 (Fed. Cir. 2013).

The petitioners argue that the Federal Circuit impermissibly narrowed the standing requirements for a DJA claim and...