On June 10, 2013, the Federal Circuit issued its opinion in Organic Seed Growers & Trade Association v. Monsanto Company, No. 2012-1298. In that case, approximately 300,000 farmers who did not use genetically engineered crops sued Monsanto, seeking a declaratory judgment that if their crops were inadvertently contaminated with the biotech firm’s patented seed (which represent up to 90% of the seeds sown for some crops) then Monsanto could not sue them for patent infringement. The farmers also sought to have all of Monsanto’s seed patents declared invalid. But because Monsanto’s policy is that it does not sue for inadvertent use of its patented seeds, the Federal Circuit held that there was no case or controversy.
Until this week, it had almost become a truism that the Just Compensation Clause only required that the Government pay for whatever property it took, and imposed no other restrictions. That is, the Just Compensation Clause is a sword, not a shield. Not so anymore. With the Supreme Court’s unanimous decision in Horne v. Department of Agriculture, property owners effectively have a taking defense, not just a taking claim, if the Government seeks to take their property.