Monsanto Corp. is known to be a ruthless litigator, defending its patented seeds against competitors and farmers alike. But NPR reports that last week at the Federal Circuit, one of Monsanto’s lawyers proposed a gentler standard for suing farmers than the one used in a famous Canadian case against farmer Percy Schmeiser.

In that case, the court ruled that Schmeiser “knew or ought to have known” that the canola he was planting in his fields contained Monsanto’s patented “Roundup Ready” gene, even though Schmeiser claimed the gene entered his fields due to wind-blown pollen and that he did not want it there.

But Monsanto lawyer Seth Waxman told the Federal Circuit that the company only chooses to pursue cases where the farmers are actually spraying their fields with Roundup, and their plants are surviving, even though they did not purchase Roundup Ready seeds.

“If the farmer were not spraying, by definition he wouldn’t be taking advantage of Monsanto’s technology,” Waxman explained. Under that standard, NPR says, suing Schmeiser would have been a mistake.

Though Monsanto is not, of course, bound by its lawyer’s words, the Federal Circuit may take the avowed standard into consideration in its ruling on this case, which was brought by a group of organic farmers who claim to be damaged by the possibility that Monsanto might sue them hanging over their heads.


Read more coverage of Monsanto on InsideCounsel:

Monsanto seed patent case headed to Supreme Court

Jury awards Monsanto $1 billion in patent infringement case against DuPont

Organic growers appeal case against Monsanto

Federal judge dismisses farmers’ class action suit against Monsanto

Monsanto poisoned French farmer, court rules