WASHINGTON, D.C. — A year after their case against multinational agricultural corporation Monsanto was thrown out by a New York district court judge, members of the Washington, Maine-based Organic Seed Growers and Trade Association emerged from a hearing in a federal appeals court Jan. 10 feeling optimistic.

The farmers' organization contends that Monsanto's patented crops and history of litigation presents a threat to farmers whose fields are inadvertantly contaminated by genetically-modified crops.

OSGATA first brought suit against Monsanto in March 2011 on behalf of 60 farmers. The case was heard in New York District Court last January and dismissed after the judge sided with Monsanto.

OSGATA subsequently brought the case to the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., in hopes of overturning the earlier ruling.

That hearing was held Thursday, and though a ruling has yet to be handed down, OSGATA President Jim Gerritsen, a potato farmer from Bridgewater, felt the response was more favorable to his organization this time around.

Gerritsen was in the capitol for the hearing along with several other Maine Farmers, including Holli Cederholm of Proud Peasant Farm in Washington and Meg Liebman of South Paw Farm in Unity.

"I think it was a very robust hearing," Gerritsen told PenBayPilot Thursday evening. "The judges had done their homework and were familiar with the law behind it. In that way it was a significant improvement over the hearing last year in New York."

Crop patents have been around since the 1930s for splicings and the 1970s for hybirds. The game changer came in 1985 with a ruling that allowed utility patents — long available to inventors of non-edible products — to be applied to plants that had been genetically modified for faster growth, added nutrition or resistance to disease, pests, pesticides or herbicides.

The regulations were a boon to Monsanto and others because they could require farmers to buy new seeds every year, guarding the patented crops from the age-old agricultural practice of seed saving.

According to a report by the Center for Food Safety, a Washington, D.C.-based environmental advocacy group, Monsanto sued 144 farmers and settled out of court with 700 others between 1997 and 2010.

From an audio recording of Thursday's hearing, one judge said the figures seemed "pretty litigious" in terms of number of lawsuits per patent.

The attorney for Monsanto, however, argued that the number of lawsuits was small given the number of farmers using Monsanto products. He added that Monsanto had never sued a farmer for the kind of situation alleged by OSGATA and had no desire to.

"One would think that if Monsanto had a widespread policy of somehow counterintuitively enforcing its patents against people who had no desire whatsoever to make use of the technology that these 304,500 plaintiffs would be able to come up with evidence ... of that widespread, rabid enforcement policy," he said, referring to the number of individuals represented by OSGATA.

OSGATA's attorney confirmed that no farmers in the plaintiff group had been pursued by Monsanto for patent infringement, but argued that cross contamination is real and that a ruling should not require an active controversy.

Lacking a specific example, the judges focused on Monsanto's policy of not pursuing legal action against farmers with trace, inadvertant contamination. One judge posed a hypothetical scenario of a farm in which 50 or 60 percent of the crops were found to have the patented genetic structure, but the farmer took no action to remove the patented crops. He asked if Monsanto would sue that farmer. Monsanto's attorney declined to draw a hard distinction on a nonbinding company policy, but said there had been cases in which a farmer was found to have a significant amount of Roundup Ready crops — a transgenic seed developed by Monsanto to resist the company's patented glyphosate herbicide, Roundup. The farmer claimed inadvertant contamination, he said, but was spraying the crops with Roundup, which would otherwise kill them.

According to Gerritsen, it's the out-of-court settlements that are more concerning, and also a third tier of enforcement that he said involves threatening letters from Monsanto. A small farmer might be totally innocent, he said, but the risk isn't worth it.

Asked how much of a problem this is in Maine, Gerritsen cited the dairy belt in Central Maine, where he said there are roughly 25,000 acres of genetically engineered corn, often located in close quarters to organic farms. The setting there, he said, is particularly conducive to accidental contamination.

"Are there any in Maine? I don't know of any," he said. "But that's because the knowledge has been supressed. We don't know where those numbers are."

This, he said, is because the settlements, which represent the larger part of Monsanto's legal efforts would have been negotiated with non-disclosure clauses, or "gag orders."

Gerritsen said the farmers are on the front lines of the battle with Monsanto but the issue will ultimately affect everyone.

"The freedom of choice we're seeking on farms is tantamount to freedom of choice for every American," he said.

Contact Ethan Andrews by email at news@penbaypilot.com