10 years ago Monsanto sued farmers Mitchell and Eddie Scruggs (collectively referred to as "Scruggs") for infringing patents relating to genetically modified Roundup Ready soybean seeds and Bollgard-containing cotton seeds. The case has resulted in numerous judicial decisions, including three Federal Circuit decisions, most notably Monsanto v. Scruggs, 459 F.3d 1328 (Fed. Cir. 2006). Scruggs raised numerous arguments against Monsanto, including first sale/patent exhaustion, implied license, lack of sufficient written description and enablement, as well as allegations of patent misuse and antitrust violations.
Nonetheless, Monsanto has prevailed, and on September 21 a jury in the Northern District of Mississippi found that Monsanto is entitled to $2.6 million for Scruggs unauthorized planting of saved crop seeds contain the patented genes, and $6.3 million for their sale of saved soybean seeds containing the Roundup Ready gene (a practice referred to as "brown bagging"). Not only that, the jury found that the infringement was willful, which means that the court can enhance the damages up to triple the amount found by the jury, or close to $30 million. Based on history, I would not be surprised if Scruggs continues to appeal, perhaps stretching this out a few more years.
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Indeed, Scruggs might be well advised to appeal, particularly in the light of Myriad and other pending gene patent litigation cases. But regardless as to whether or not one agrees with gene patents, Monsanto and other GE seed producers have an obligation to find ways to help limit contamination of GE from non-GE crops. Such contamination seems increasingly difficult to prevent and control, and it is all too easy for Monsanto to rake in massive legal damages in such a tenuous situation.
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