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Unknown to you, your field of a non-genetically modified vegetable or fruit crop is located not far from a field of genetically modified fruits or vegetables. The genetic modification allows for resistance to herbicides (e.g. glyphosate, such as RoundUp®) or some other useful trait, such as drought resistance, and has been patented. Also unknown to you, one day the wind blows or insects fly in the direction of your field and cross-pollinate some of your previously non-genetically modified fruits or vegetables. Before the end of the growing season, you notice some of your plants outperforming their immediate neighbors and you decide to save the seeds of the outstanding performers for the following growing season. Question: are you potentially liable for patent infringement? A relatively recent decision by the Court of Appeals for the Federal Circuit suggests you may indeed be liable for patent infringement.

In Organic Seed Growers and Trade Ass’n v. Monsanto Company, a group of 23 plaintiffs in a lawsuit against Monsanto sought declaratory judgment of non-infringement and invalidity of Monsanto’s genetically modified seed patents. The case asserted that the growers were in fear of becoming liable for inadvertently growing patented seeds.

In dicta, the Court of Appeals for the Federal Circuit indicated that even trace amounts of infringing material can still constitute patent infringement, most likely because patent infringement is a strict liability tort, meaning the farmer’s unknowing use of the patented invention is not a valid defense. The court said that it is “likely inevitable” that conventional crops are contaminated with genetically modified crops. However, the plaintiff farmers in this case were not entitled to the court granting protection from Monsanto, unless Monsanto took some additional step to create some threat of enforcing their patent(s) against the farmers. In the present case, Monsanto had only stated that it will not sue unless the farmers take advantage of the patented seeds’ unique properties (here, glyphosate resistance). In the present case, the farmers made no such showing. Accordingly, the Court of Appeals for the Federal Circuit affirmed the lower court’s dismissal of the case for lack of subject matter jurisdiction – finding that there was “no justiciable case or controversy” as required under Article III of the U.S. Constitution.

In conclusion, at least in theory, Monsanto could have sued under such circumstances, however, elected not to. Nevertheless, it appears the option remains Monsanto’s right to assert for as long as their patents remain valid.