Rodney Nelson says he’s tried to forget the “living hell” Monsanto unleashed on his family nine years ago.
In 2000, Monsanto, the world’s largest seed company, sued Nelson and his family for allegedly infringing its seed patents – meaning illegally saving patented seed – on their North Dakota farm. Monsanto’s case was based on samples the company’s hired investigators claimed they took from the Nelson’s fields.
The North Dakota Seed Arbitration Board called the evidence against the Nelsons insubstantial, but Monsanto continued its aggressive legal pursuit to take what would have amounted to three times the entire gross value of the Nelson’s crop, plus punitive damages and attorney fees. And the company sent letters to more than 250 seed distributors in a three-state region instructing them not to sell its products to the Nelsons, effectively painting the family as criminals overnight.
Eventually Monsanto and the Nelson family dismissed their cases against each other.
The Nelsons’ fight with Monsanto left scars, yet it also left legislation that protects farmers from enduring similar intrusive investigations. North Dakota legislators passed a law that established a crop sampling protocol that patent holders must follow to level the playing field for farmers who face patent infringement allegations. It’s dubbed the “Nelson Bill.”
Since the Nelson Bill passed in 2001, four other states have enacted similar legislation, including Indiana, South Dakota, Maine, and California.
Here in Montana we’re fortunate that none of our farmers have faced harassment or misjudgment on the part of patent holders. But that doesn’t mean our farmers and ranchers aren’t concerned or feel vulnerable to such intrusions of privacy and property.
That’s why some Montana legislators want to take a pro-active approach and not wait for conflict or mistakes to occur when evidence for the problem exists in other states. One clear solution is before them.
Rep. Betsy Hands, D-Missoula, has introduced House Bill 445 – the Farmer Protection Bill – that, similar to North Dakota’s law, establishes a protocol for patent holders to follow when collecting samples from farmers’ fields. HB 445 helps farmers in three ways:
(1) It provides an open and honest crop investigation process. Patent holders must get written permission from farmers before collecting samples and farmers have the opportunity to bring in the Montana Department of Agriculture as a third party.
(2) It shields farmers from liability who unknowingly acquire patented plant material. Plants can transfer (patented) genetic material through pollen via wind and pollinators, or different varieties of seed can mix during harvesting, transportation, and distribution. HB 445 says these farmers can’t be held liable for patent infringement. (Patented seeds are now so pervasive that industry and farmers alike agree that avoiding patented plant material is virtually impossible with major crops.)
(3) It establishes Montana’s courts as the venue for disputes. Monsanto’s seed licensing contracts require all patent infringement cases be tried on its home turf in St. Louis, Missouri. This means farmers shoulder expensive transportation and lodging costs on top of attorney fees if they choose to defend themselves in court.
Montana’s not alone this legislative session in trying to pass a bill of this nature. New Mexico, Illinois, and Washington have all introduced similar bills.
Monsanto has sued more than one hundred farmers in 27 states for patent infringement and hundreds more are investigated each year, many of whom sign restrictive settlement agreements for undisclosed sums of money. These agreements include gag orders, so many of the stories remain untold.
While many farmers targeted by Monsanto admit to saving seed, others say they have records and receipts to prove their innocence. Yet too many farmers are placed at a disadvantage when told of accusations long after the opportunity to collect independent samples has passed. Picture a farmer being handed documents with seed saving allegations in the winter, after his harvest is long gone. It’s this inability to collect duplicate samples that’s spurred bills like HB 445.
Opponents say HB 445 will discourage research and development and aid “seed pirates.” HB 445 won’t do either. The bill doesn’t transfer economic liability to the patent holder, meaning it doesn’t put anybody at financial risk. And farmers who knowingly infringe patents will face the consequences. Patent holders deserve to protect their intellectual property. HB 445 doesn’t protect bad actors. It simply honors the rights of patent holders while also respecting the rights of our farmers.
The bill will be heard before the Senate Agriculture, Livestock and Irrigation Committee on March 17. Contact your representatives and tell them that honest farmers deserve to have their property and privacy rights protected.
Kiki Hubbard is a consultant who works for farm organizations around the country on issues surrounding patented crops. She helped craft HB 445. You can reach her at firstname.lastname@example.org.