Conscious Commitment: Monsanto, LLC

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Monsanto Technology, LLC, is a corporation organized under the laws of the state of Missouri. Monsanto is engaged in the development, licensing, and conditional sale of genetically modified agricultural seeds in interstate commerce. The natural biological and chemical makeup of these seeds has been tampered with in several ways, primarily to increase resistance to insect pests and Monsanto-made herbicides, and they have been patented under 35 U.S.C. §161. Monsanto routinely compels growers of the seeds to sign a uniform Technology/Stewardship Agreement. In the MT/SA, the farmer agrees (among other things) to limit his use of the seeds to a single planting, to use only Monsanto herbicides on his crops, to allow Monsanto unbridled access to his property and Internet records, to use only Monsanto-approved cotton gins, and not to conduct or allow any independent studies of the safety or properties of the genetically modified technology. The MT/SA does not mention the applicable patent statutes, and there is no indication that signers are made aware in any way of the content of those laws. Monsanto holds hundreds of these contracts, mostly in interstate commerce.

There is no dispute that Monsanto is the owner of the patents controlling the seed technologies it has developed. However, the MT/SA is an unconscionable contract under §2-302 of the Uniform Commercial Code and should be nullified as such.

Relevant Patents Limited in Scope

35 U.S.C. §163 simply and conclusively delineates the significance of a United States plant patent such as those held by Monsanto: "In the case of a plant patent, the grant shall include the right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States, or from importing the plant so reproduced, or any parts thereof, into the United States." (Emphasis supplied). This simple statute shows that Congress clearly did not envision the near-absolute control over agricultural development now held by Monsanto. As opposed to granting patent holders free rein, §163 actually strikes a delicate balance between agribusiness' incentives for new development and citizens' interest in ensuring that essential staple foods would not fall under the exclusive control of a handful of companies or inventors.

Under the plain text of §163, farmers must purchase new varieties of patented genetically modified seed from the holder of the patent. However, the use of the qualifier "asexually" conclusively indicates that the legislature intended the natural breeding, saving, and planting of seeds to remain legal. Any other reading of these terms would render the word "asexually" mere surplusage, and therefore should be rejected. As the Supreme Court stated in Connecticut National Bank v. Germain, "Courts should disfavor interpretations of statutes that render language superfluous." 503 U.S. 249 (1992).

In the context of the §163, "asexually" is a highly specific word, and its removal would have no effect on the clarity or grammatical structure of the sentence. If its inclusion had been supererogatory, Congress would doubtlessly have removed it during its 1998 revision of the section (found at Pub. L. 105-289). Instead, it merely changed a single clause - substituted the word "include" to "shall be of" - but left "asexually" in place. This change could reasonably be interpreted to proscribe other behavior, such as the artificial replication of a patent holder's genetic codes by rival companies, but it does not in any way interfere with an individual's ability to plant seeds grown in his soil and tended by his hard work. As was said in Trailmobile Co v. Whirls, 331 US 40 (1947), "The interpretation of statutes cannot safely be made to rest upon mute intermediate legislative maneuvers."

Not only is Monsanto's crafty construction of this clear, concise statute a transparently deliberate misunderstanding designed to enlarge its profits while unlawfully curtailing traditional farming practices, it is blatantly inconsistent with accepted interpretation of American law. Learned Hand, speaking for the Second Circuit, wrote in Lehigh Valley Coal Co. v. Yensavage that laws "should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them." 218 F.5d 7 (1914). In Schulte Co. v. Gangi, the Supreme Court again recognized the importance of these context clues: "For the purposes of judicial enforcement, the 'policy' of a statute should be drawn out of its terms, as nourished by their proper environment, and not, like nitrogen, out of the air." 328 U.S. 108 (1946). In Wright v. Denn, Justice Story held that "the law does not decide upon conjectures, but upon plain, reasonable, and certain expressions of intention." 10 Wheat. 204 (1825). In United States v. Public Utilities Comm'n, Justice Frankfurter noted that courts should not "extrapolate meaning from surmises and speculation and free-wheeling utterances, especially... in disregard of the terms in which Congress has chosen to express its purpose." 345 U.S. 295 (1953). In CT National Bank v. Germain, supra, it was held that "in interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Finally, in United States v. Pulaski Co., it was held that "there is a strong presumption that the literal meaning is the true one, especially as against a construction that is not interpretation, but perversion." 243 U.S. 97 (1917). That statement seems equally applicable here.

Inapplicability of the Plant Variety Protection Act

7 U.S.C §2402, part of the Plant Variety Protection Act of 1970 ("PVPA"), dictates that "The breeder of any sexually reproduced or tuber propagated plant variety (other than fungi or bacteria) who has so reproduced the variety, or the successor in interest of the breeder, shall be entitled to plant variety protection for the variety." However, this provision is entirely irrelevant to the case at hand for two reasons.

Firstly, the Act only applies to "sexually reproduced" plants. This clearly does not cover the complex and unnatural process of genetic manipulation or mutation. From the disparate treatment of sexually reproduced cultivars - entitled to variety protection certificates - and asexually created breeds - protected by plant patents - it is evident that the legislature intended this logical division. Any other reading would render either the word "sexually" in the PVPA or the word "asexually" in 35 U.S.C. §163 redundant.

Secondly, even if the PVPA does protect Monsanto's creations to a limited extent, the provision of the MT/SA proscribing farmers from saving and replanting seed still vastly exceeds the PVPA's protections. The vast majority of the soybeans, corn and cotton grown on American farms is not produced for horticultural purposes, and therefore §2543 states:

"It shall not infringe any right hereunder for a person to save seed produced by the person from seed obtained, or descended from seed obtained, by authority of the owner of the variety for seeding purposes and use such saved seed in the production of a crop for use on the farm of the person, or for sale as provided in this section. A bona fide sale for other than reproductive purposes, made in channels usual for such other purposes, of seed produced on a farm either from seed obtained by authority of the owner for seeding purposes or from seed produced by descent on such farm from seed obtained by authority of the owner for seeding purposes shall not constitute an infringement."

This unmistakeably protects the right of Monsanto's customers to continue the traditional propagation of ancient and basic cultivated crops.

MT/SA Not a Valid or Enforceable Contract

In §4(f)-(i) of the MT/SA, all growers of Monsanto seeds agree:

"f. To use Seed containing Monsanto Technologies solely for a single planting of a commercial crop, except in the case of Genuity® Roundup Ready® Alfalfa where a single planting may be used for multiple cuttings. g. Not to save or clean any crop produced from Seed for planting, not to supply Seed produced from Seed to anyone for planting, not to plant Seed for production other than for Monsanto or a Monsanto licensed seed company under a seed production contract.  h. Not to transfer any Seed containing patented Monsanto Technologies to any other person or entity for planting. i. To plant and/or clean Seed for Seed production, if and only if, Grower has entered into a valid, written Seed production agreement with a Seed company that is licensed by Monsanto to produce Seed. Grower must either physically deliver to that licensed Seed Company or must sell for non-seed purposes or use for non-seed purposes all of the Seed produced pursuant to a Seed production agreement." MT/SA at 1.

These terms are grounded in the assertion found in section 5(b) of the MT/SA, infra, that "Monsanto Technologies are protected under U.S. patent law." However, Monsanto's extraordinarily loose construction of these patent laws is plainly repugnant to their actual meaning. This deceptive statement appears highly likely to mislead growers as to the rights they actually retain under the vaguely invoked laws, and defraud them into waiving liberties they are unaware they have.

The bare fact that the growers signed the MT/SA fails to validate its usurious terms. Any threadbare defense that Monsanto enjoyed an unrestrained freedom to contract with its growers has been contradicted by the Supreme Court in its decisions dating back to 1908 (Muller v. Oregon, 208 U.S. 412). In Norman v. Baltimore & Ohio R. Co., it opined that "Parties cannot remove their transactions from the reach of dominant constitutional power by making contracts about them." 294 U.S. 290 (1935). In Nebbia v. New York (291 U.S. 502 (1934)), it wrote that "government cannot exist if the citizen may at will use his property to the detriment of his fellows." In Chicago, Burlington & Quincy R. Co. v. McGuire, it held: "There is no absolute freedom to do as one wills or to contract as one chooses... Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community." 219 U.S. 549 (1911). In 1943, it described American law as "a soil in which the laissez-faire concept or principle of noninterference has withered, at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls." West Virginia v. Barnette, 319 U.S. 624.

Not only is freedom of contract a relative concept, its invocation requires a valid contract at the very least - and the MT/SA fails to meet that standard. The requirement that assent to a binding agreement be an informed and rational choice is one of the oldest and basic tenets of contract law. A waiver of any protections or privileges by contract or otherwise, particularly those economic and social liberties secured by the Due Process Clause, must be made "voluntarily, knowingly and intelligently." Miranda v. Arizona, 384 U.S. 436 (1966), see also Culombe v. Connecticut, 367 U.S. 568 (1961). A promise or bargain made in the absence of this mutual educated voluntariness - frequently referred to as consensus ad idem or "meeting of the minds" - is no contract at all.

This simple rule is not in any way negated by the rise of mass commercial contracts, such as the MT/SA, that corporations enter into with hundreds or even thousands of their consumers. If this new social reality has any affect on established common law at all, it only renders the requirement more essential, lest large entities like Monsanto abuse their inherent advantage in the bargaining process. As was asked in Henningsen v. Bloomfield Motors: "Where can the buyer go to negotiate for better protection? Such control and limitation of his remedies are inimical to the public welfare and, at the very least, call for great care by the courts to avoid injustice through application of common-law principles of freedom of contract." 32 N.J. 358 (1960). See also Siegelman v. Cunard White Star, 221 F.2d 189 (2nd Cir. 1955) ("Standardized contracts have been described as those in which one predominant party will dictate its law to an undetermined multiple rather than to an individual. They are said to resemble a law rather than a meeting of the minds").

These contracts are also deemed unenforceable by Missouri law, which says that "If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract." Uniform Commercial Code, §2-302. Yet Monsanto continues to peddle the MT/SA despite this unambiguous prohibition of such behavior.

The MT/SA clearly does not meet these requirements. In a society where criminal suspects must be diligently educated as to their rights to remain silent and to the advice of counsel - information most Americans already know - any expectation that farmers should be intimately acquainted with the terms of obscure legislation seems inconsistent and unreasonable. As Justice Jackson noted from the bench in Federal Crop Ins. Corp v. Merrill, "No farmer worth his salt would waste any time reading a dreary publication like the Federal Register." 332 U.S. 380 (1947). It is doubtful that the patent laws would be more practical reading material.

In sum, the MT/SA, though masquerading as an attempt to ensure the security of Monsanto's scientific innovations, is actually an exorbitant contract that significantly exceeds the protection afforded to GMO inventors under federal law, and therefore should be nullified under the Uniform Commercial Code. As then-Judge Cardozo said in 1928, courts should decide cases "not [on the basis of] what has been done under the statute, but what may reasonably be done under it." In re Richardson, 247 N.Y. 401. Grave injustice would inevitably result from allowing Monsanto to continue mongering their unconscionable "agreements," and therefore the courts must act promptly to prevent the perpetuation of their patently false claims.

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This page contains a single entry by Katrianna Brisack published on May 18, 2016 9:23 AM.

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