|
|
 
|
What is Monsanto doing to farmers? The case of Percy Schmeiser and its implications
by Irena Hollowell
(Friday, Oct. 18, 2002 -- CropChoice guest commentary) --
Part 1: What is the Purpose of Monsanto, anyway?
Monsanto started out as a chemical company in 1901 and later expanded to include pharmaceuticals and biotechnology (Nachtigal). Some current and past Monsanto products include Agent Orange (Nachtigal) and Bovine Growth Hormone (Monsanto website). Most Monsanto products are pesticides and herbicides. One of the biggest sellers is Round-Up, a trade name for the herbicide glyphosate, which is capable of killing most kinds of plants by inhibiting normal root function. Monsanto developed glyphosate in the 1970s and patented it, but the patent ran out in 2000 (Nachtigal). Round-Up is widely alleged to break down quickly and therefore cause much less environmental harm than most pesticides. This claim is made by even such environmentally reputable organizations as The Nature Conservancy, which sometimes uses it to exterminate persistent non-native invasive plants. Yet the same chemical, in much greater concentrations, is also being sprayed on coca fields in Colombia, and causing significant health problems there.
Within the past couple decades, Monsanto has also started selling seed. Since then, they have grown to become the second-largest seed company in the world (Halweil et al., 10). All Monsanto seeds are genetically engineered, and the genes introduced through this process are patented, as are the properties produced by those genes and the cells containing those genes.
There are numerous issues with genetic engineering itself. The technology is relatively new, very different from conventional breeding methods, and therefore unpredictable; it may also have other inherent unpredictabilities. It involves transfer of genes between disparate species, often even from different kingdoms. Many people, particularly in Europe, find this inherently troublesome—a matter of playing God—and would be uncomfortable eating genetically engineered food. Escape of genes into the wild has been reported.
Monsanto currently has two principal types of genetically engineered seed, and two corresponding patents. The first of these principal kinds of seed is commonly called "Bt," meaning Bacillus thuringiensis. Bacillus thruingiensis is a bacteria commonly used by organic farmers because it naturally produces an insecticidal compound. Monsanto has engineered potatoes, corn, and cotton to contain the gene that enables this bacteria to produce this compound. Every cell of these engineered plants produces the same insecticidal compound. This can enable farmers to stop spraying certain synthetic insecticides—but if we count the Bt compound as an insecticide, there is a lot more total insecticide in the farmer’s field.
The second principal kind of seed produced by Monsanto is called "Roundup Ready." Roundup Ready plants tolerate high doses of glyphosate. Farmers growing these plants can kill weeds more effectively by spraying large amounts of glyphosate both before and after their crops germinate. Monsanto and the U.S. government allege that in general, farmers use less herbicide on overall on Roundup Ready crops than they would if the crops were not Roundup Ready. However, studies by public interest and environmental groups tend to show just the opposite. Monsanto has engineered corn, cotton, soybeans, canola, and sugar beets to resist Round-Up. The company began to sell Roundup Ready Canola in Canada in 1996 (MacKay #17)
Beyond the issues with genetic engineering, there are issues with Monsanto’s policies and patents.
Part 2: Basic Monsanto Policies
Monsanto’s policies are described in the Technology Use Agreement that farmers must sign in order to be eligible to buy Monsanto seed. The core of Monsanto’s policies is the same in the United States and Canada. Yet in some countries, Monsanto is alleged to sell its seeds without any agreements at all. (Schubert)
First of all, farmers growing from Monsanto’s seed are not allowed to save the seed from their fields and plant it the next year. Second, farmers are not allowed to give Monsanto seed away to neighbors, or trade it with neighbors. Farmers have traditionally selected particularly high-quality seed from their crops, saved it, traded some with other farmers, and planted the next year’s crop from saved seed. When companies started selling seeds, a new possibility emerged: farmers could buy seed selected by expert growers each year, plant it, and not bother with saving seed from their own crops. Monsanto explicitly makes this age-old practice illegal for all farmers who buy Monsanto seed.
Third, all crops grown from Monsanto seed must be sold to licensed buyers. One purpose of this requirement is to ensure that farmers do not sell their product to anyone who will use it as seed from which to grow another crop.
Fourth, farmers who buy Monsanto seed must buy it as part of a package that includes a minimum quantity of Monsanto’s Roundup (Halweil et al., 10).
Monsanto has ended up getting quite rich off all these agreements, but it is highly debated whether farmers end up better-off financially or not. Farmers who grow Bt plants pay much more for the seeds than they would pay for non-genetically engineered seed, and they necessarily pay it every year. Farmers who grow Roundup Ready plants not only face these increases in cost, they also pay large sums of money for Round-Up. With fewer competitors for Round-Up Ready plants and fewer insects on Bt plants, yields tend to be higher, giving farmers a chance to pay Monsanto for the inputs without losing money overall. Yet if the companies buying the seed are no longer willing to pay as much for it, or if yields are lower than expected, farmers can be in deep financial trouble.
Part 3: Monsanto’s lawsuits
Monsanto acknowledges that it has launched between 100 and 525 infringement cases in the U.S. and Canada (Broydo) and others around the world (Nachtigal). As Cropchoice News states, "Monsanto has preferred to use aggressive legal tactics that encourage accused farmers to settle out of court. As part of the settlement agreements, farmers have to pay the company and agree to a gag order preventing them from talking to the press about the case."
The gag orders have several results. The general public doesn’t hear much at all about the mass of cases that doesn’t go to court, and has incomplete information on which to base any judgment of Monsanto. Of course, gag orders also make farmers more dependent on Monsanto for the information they use to, for example, decide whether or not to buy seeds from Monsanto. Gag orders also mean that an individual who does find out about a particular gagged case is less likely to be able to obtain more information. Gwen Roush, whose story had been reported on before the Roush family made an out-of-court "agreement" with Monsanto, was slightly cautious about telling me about her case, and cited earlier stories as a reason she felt she could tell me about her family’s struggle.
As a company incorporated in St. Louis, Missouri, Monsanto also states in its U.S. Technology Use Agreement that Missouri state law governs the contract (Nachtigal), and of cases involving patent infringements Monsanto, there is a predominance dealt with in Missouri. This poses a further disadvantage for any farmer trying to fight Monsanto.
Three farmers sued by Monsanto have refused to make "agreements" out of court with Monsanto—Percy Schmeiser from Canada, Mitchell Scruggs in Mississippi, and Dallas Thomason in Louisiana. All three have lost their cases (Schubert, Smith). Mitchell Scruggs, like Percy Schmeiser, is appealing. Percy Schmeiser’s case has been widely written about and cited by many as a first. Given that it’s also an actual court decision, that sets a powerful precedent for future, similar cases.
Martin Phillipson got confused and didn’t agree that Percy Schmeiser’s case was a really a precedent; he said that "the case can be described as a Canadian first but nothing more. Monsanto has routinely pursued similar actions in the United States, the most significant of those being the action against Louisiana cotton farmer Carroll Smith, who was found to have used Monsanto GM cotton seed without a license." Yet Carroll Smith is, in fact, not a farmer at all. (Carroll Smith, personal communication). Rather, she is an editor of Louisiana Farmer publication and author of an article entitled "Louisiana Cotton Farmer Loses to Monsanto" in the same publication—one of the few published articles about Dallas Thomason.
Which is the real first precedent, anyway? What makes Percy Schmeiser’s case different from Dallas Thomason’s? Why is Percy Schmeiser’s case in the news so much more? Moreover, Dallas Thomason’s case is not even on public record—why? Dallas Thomason would not comment to me on the arguments he made in court or on the arguments made against him; his lawyer likewise would not comment to Carroll Smith. Mr. Thomason told me little more than that the Thomasons felt they were guilty before they went into the courtroom, that they were only fighting Monsanto to determine the damages to be paid, and that like Percy Schmeiser’s, his case was one of "David" fighting "Goliath." Does Mr. Thomason actually want to keep the facts of the case secret, or is his refusal to talk due to a gag order imposed by Monsanto? I have no way of knowing.
Percy Schmeiser, on the other hand, has a lot to say to everyone willing to listen.
Part 4: Percy Schmeiser’s case
So, what’s special about Percy Schmeiser, besides the fact that he didn’t reach an "agreement" out of court? To what extent is this really a precedent?
First of all, Dallas Thomason and Mitchell Scruggs both admit that they bought Monsanto seed, grew it, and saved the seed that those plants produce. (Smith, Schubert) Both saw and signed Monsanto Technology Agreements. Percy Schmeiser, on the other hand, did not buy any seed from Monsanto. Therefore, he never signed any agreement with Monsanto. He never promised not to save seed.
Also, Dallas Thomason and Mitchell Scruggs both decidedly like Monsanto’s seeds. Percy Schmeiser, on the other hand, says that "substantial damage and loss has been suffered by [him] because of the herbicide-resistant plants. It is said for them that it is not possible to control the growth of the Roundup Ready canola with normal herbicides, it interferes with crop selection, making it difficult to plant anything other than canola, and it requires the adoption of new farming practices." (MacKay, #11)
But no one is claiming that the Roundup Ready gene wasn’t there. In fact, Monsanto collected samples from Percy Schmeiser’s farm, and tests conducted on these samples show 63-98% of plants to have the Roundup Ready gene (MacKay, 41-95). The tests conducted by Percy Schmeiser show rates on the lower end of this range; the tests conducted by Monsanto show rates on the higher end. There is some argument about the validity of the samples and the competency of those who took them. I will not examine these in any detail because there have already been many cases in which the validity of tests must be determined, so this case is not a precedent in that regard. But all the tests conducted show that most of the plants in So, Monsanto starts to have an argument.
Here’s the trouble with a patent on a technology that spreads by itself. One central question in this case is, though, how easily does it spread by itself, anyway? The ease with which a canola plant’s genes, including any genetically engineered genes, will spread, seems to depend a lot on who one asks. Monsanto says not to easily. Lackey says only 35% of canola seeds in cultivated fields result from cross-pollination with other individual canola plants, and that honeybees (the principal pollinators of canola) in cultivated fields collect nectar from only a few immediately adjacent plants on any one trip from the hive. The implication is that large-scale accidental mixing of Roundup Ready canola with conventional canola would be impossible. Yet Lackey doesn’t give information about how far seed travels. Percy Schmeiser, on the other hand, says that seed can travel 5-10 miles on a lightly ice-covered snowy surface (Halweil, 9).
Part 5: Some excerpts from Judge MacKay’s decision and their implications.
The Description of Percy Schmeiser’s Crime
In 1997, Percy Schmeiser found that some canola plants on the edges of his fields survived when he sprayed them with Roundup. In order to investigate, he Sprayed Roundup on about three acres of field two of his farm, next to the road, and found that about sixty percent of the canola plants survived, mostly in clumps near the road. Then,
[40] Despite this result Mr. Schmeiser continued to work field 2, and, at harvest, Carlysle Moritz, on instruction from Mr. Schmeiser, swathed and combined field 2. He included swaths from the surviving canola seed along the roadside in the first load of seed in the combine which he emptied into an old Ford truck located in the field. That truck was covered with a tarp and later it was towed to one of Mr. Schmeiser's outbuildings at Bruno. In the spring of 1998 the seed from the old Ford truck was taken by Mr. Schmeiser in another truck to the Humboldt Flour Mill ("HFM") for treatment. After that, Mr. Schmeiser's testimony is that the treated seed was mixed with some bin-run seed and fertilizer and then used for planting his 1998 canola crop.
As far as how Roundup Ready canola could have gotten into Field 2,
[117] A variety of possible sources were suggested, including cross field breeding by wind or insects, seed blown from passing trucks, or dropping from farm equipment, or swaths blown from neighbours' fields. All of these sources, it is urged, could be potential contributors to cross-breeding of Schmeiser's own canola or to deposit of seeds on his land without his consent. Mr. Borstmayer, who farmed on the same grid road but further north from Bruno than Mr. Schmeiser's fields numbers 1, 2, 3 and 4, testified that in the winter of 1996-97 a bag of Roundup Ready canola seed had fallen from his truck in Bruno and broken open, and some seed was lost before he put the broken bag back on his truck to be hauled past Schmeiser's fields to his own. Further, after harvesting his 1997 crop he trucked it to the elevator on the grid road to Bruno, past Schmeiser's fields, with at least two loads in an old truck with a loose tarp. He believes that on those journeys he lost some seed.
Percy Schmeiser says it was enough seed to plant two thousand acres of canola (Halweil et al., 9).
A Determination of Relevant Protections: The Right to Patent Over the Plant Variety Protection Act
Percy Schmeiser, like Dallas Thomason and Mitchell Scruggs, saves his own seed, and has saved it for many years. As seed-savers of non-genetically engineered varieties, they were accustomed to legal terms that are specific to plant varieties. These legal terms are similar between the United States and Canada, but quite different from the terms governing patentable inventions. Therefore, Percy Schmeiser made a claim similar to claims made by Dallas Thomason and Mitchell Scruggs with regards to the patent:
[13] The defendants further asserted at trial that Canadian Patent No. 1,313,830 is, and always has been, invalid and void because:… (c) if infringement is found the plaintiffs would in effect obtain a patent for a plant, which it is urged is not possible in Canada in light of the Plant Breeders' Rights Act which provides for protection of new varieties of plants.
The Plant Breeder’s Rights Act (PBPA) states that:
(1) Subject to this Act, the holder of the plant breeder's rights respecting a plant variety has the exclusive right (a) to sell, and produce in Canada for the purpose of selling, propagating material, as such, of the plant variety; (b) to make repeated use of propagating material of the plant variety in order to produce commercially another plant variety if the repetition is necessary for that purpose…. (d) to authorize, conditionally or unconditionally, the doing of an act described in paragraphs (a) to (c).
3) A sale of propagating material in the exercise of any exclusive right conferred by subsection (1) does not imply that the seller authorizes the purchaser to produce, for the purpose of selling, propagating material as such but, subject to any terms or conditions imposed by the seller, the sale implies that the seller authorizes the purchaser to sell anything sold, in that exercise of the exclusive right, to the purchaser.
"propagating material" means any reproductive or vegetative material for propagation, whether by sexual or other means, of a plant variety, and includes seeds for sowing and any whole plant or part thereof that may be used for propagation (Department of Justice Canada website)
Under this Act, a farmer who develops a plant variety can register that variety and receive a certain degree of ownership of it. However, any farmer can grow any plant variety for which he or she has seed, whether or not registered (under the name of the same or another farmer). Any farmer can save the seed from any variety he or she grows, whether or not registered, and plant that seed another year. Any farmer can use any seed he has, whether or not registered under the name of the same or another farmer, to produce his or her own new variety, as long as the use of the protected variety in this process is not repeated. The only prohibition is against growing and selling of seed for sowing or of other propagating material of a registered variety, without the permission of the farmer who registered it. The implication is that seed that can be used for consumption rather than sowing, such as canola seed, may be sold for the purpose of consumption.
Percy Schmeiser had developed a variety that would be eligible for protection under the PBPA:
[29] As is apparently common practice for a number of canola farmers in the Bruno area, Mr. Schmeiser routinely saved a portion of the canola harvested on his property to serve as seed for the next generation of crops. Through this procedure, Mr. Schmeiser was able to avoid purchasing canola seed after 1993, until 1999, and over the years he believes he was able to develop his own strain of canola that was relatively resistant to various forms of diseases that tend to attack canola.
Under the PBPA, Percy Schmeiser’s act of saving seed would simply be an act of combing his variety with Monsanto’s variety. The trouble is that Monsanto’s Roundup Ready canola is protected not under the PBPA, but under Patent Law, and under Patent Law the patentee has the exclusive right to make and sell an invented product—in this case not a plant variety but a plant gene and a plant cell. A description of the relevant parts of Monsanto’s patent follows:
[22] The "chimeric" plant gene is a gene (i.e. DNA) that was molecularly engineered using multiple sources including plant, viral and bacterial DNA. Claim 1 of the patent sets out the basic claim to a chimeric plant gene. Claims 2, 5, 6, and 7 are claims dependant upon claim 1. Claim 22, also dependant upon claim 1, is for a glyphosate-resistant plant cell comprising a chimeric plant gene of claim 1, and claims 23, 26, 27 and 28, are dependant upon claim 22. Claim 45 is a glyphosate-resistant oil seed rape cell of claim 22.
In Pioneer Hi-Bred v. Canada (Commissioner of Patents) [1989], the Canadian Supreme Court determined that "a new variety of soybean produced by cross-breeding (hybridization) was not patentable" (MacKay, 85) because it didn’t qualify as an invention. An ordinary plant gene or cell certainly wouldn’t be patentable either because it is also not an invention. Monsanto’s Roundup Ready and the cells that contain it have been deemed patentable because they are products of a process that would not occur in nature—the combination of DNA from disparate species.
Given that a non-engineered plant variety is not patentable, MacKay finds that
[80] The PBRA was intended to create a new form of intellectual property right in new plant varieties, as defined, for registered plant breeders. These are more limited in scope than the rights of a registered patent holder, but they apply to new registered varieties of plants resulting from breeding, even if the result or the process giving rise to the result is not patentable. Nothing in the PBRA precludes an inventor from seeking registration under the Patent Act. In 1989 proceedings of the Parliamentary Committee considering Bill C-15 (which became the PBRA), the Minister of Agriculture of the day commented, inter alia,... this is not patent legislation. This is plant breeders' rights... The patent legislation will be more encompassing than what is outlined here...
So the PBRA may govern ownership of plant varieties, but other laws govern ownership of individual plants. Now a different set of laws entirely govern ownership of plant genetic makeup. When Judge MacKay verifies the validity of Monsanto’s patents, he cites one case: President and Fellows of Harvard College v. Canada (Commissioner of Patents), in which the oncomouse, a variety of mouse created by genetic engineering to be particularly susceptible to cancer, was found to be patentable. He also mentions that "a yeast culture used to digest spent sulfite liquor, a waste product of pulp mills" has also been found patentable (MacKay, 88).
Is it actually intrinsically bad that patent laws can govern genes and cells? Is the problem really with the fact that the plant is patented or with the way the patent is enforced? These are the next questions I turned to.
An Invention that Spreads Without Human Intervention
In addition to claiming that the PBRA (and not Patent Law) did, according to legal logic, govern the breeding of plants and apply to his case, Percy Schmeiser also claimed that the PBRA (and again, not Patent Law) govern the breeding of plants and apply to his case:
[13] The defendants further asserted at trial that Canadian Patent No. 1,313,830 is, and always has been, invalid and void because: (a) the alleged invention is a life form intended for human consumption and is not the proper subject matter for a patent; it is self-propagating and can spread without human intervention….
Judge MacKay claims that the potential for self-propagation doesn’t matter:
[83] Moreover, the fact that replication of the gene may occur in the natural course of events, without human intervention after insertion of the gene in the original plant cells, and plants, produced for seed, and that this may result in differences between individual canola plants does not in itself preclude registration, under the Patent Act, of the invention, that is, creation of the gene and the process for inserting the gene….
Here again the oncomouse can be seen as a precedent, and the yeast culture mentioned above can be seen as similar; both mice and yeast can reproduce without human intervention. Supposing they were in the open, unconfined to cages, they might also spread without human intervention. The difference is that oncomice and pulp mill yeast are kept in confined spaces, so they don’t spread. Furthermore if they did spread, it is still hard to imagine that they would accidentally be confused with other mice or yeast that are used, bred, raised, grown, or sold by anyone. Neither Roundup Ready canola nor the Roundup Ready gene precisely has much chance of being accidentally confused with the canola that a farmer is growing; rather the canola that a farmer is growing has the chance of accidentally becoming Roundup Ready canola; the Roundup Ready gene has the chance of actually becoming part of the canola that a farmer is growing. This distinction doesn’t seem to matter to Judge MacKay when he cites the oncomouse precedent and pulp mill yeast example.
What happens, then, when a plant is the material property of a farmer also contains the intellectual property of a corporation, and the corporation has neither sold nor given nor lent its intellectual property to the farmer? Judge MacKay gives the following fairly clear theoretical answer:
[83] …. Not all progeny from pollen of Roundup Ready plants will be Roundup tolerant if outcrossing with Roundup susceptible plants occurs, but only use of those plants containing the gene can be subject to Monsanto's claims as patent holder.
More practically, this means that:
[92] Thus a farmer whose field contains seed or plants originating from seed spilled into them, or blown as seed, in swaths from a neighbor’s land or even growing from germination by pollen carried into his field from elsewhere by insects, birds, or by the wind, may own the seed or plants on his land even if he did not set about to plant them. He does not, however, own the right to the use of the patented gene, or of the seed or plant containing the patented gene or cell.
Essentially, to use plants with the Roundup Ready gene is to infringe on Monsanto’s invention. What is a farmer to do, then, if Roundup Ready plants get into his field accidentally? Again, Judge MacKay gives a fairly clear answer:
[126] Other farmers who found volunteer Roundup tolerant plants in their fields, two of whom testified at trial, called Monsanto and the undesired plants were thereafter removed by Monsanto at its expense.
Calling Monsanto doesn’t actually seem like an unreasonable thing to do. Yet it does require some effort on the part of the farmer. Few patents require that people uninterested in the invention make any special effort to avoid infringing on the patent.
Percy Schmeiser presents more reasons to drop the charges against him. He claims that "in never occurred to him that [the resistant canola plants] might have grown from Monsanto’s Roundup Ready canola seeds; indeed, he claims, he didn’t even know such seeds existed" (Broydo). Monsanto counters that he couldn’t have been so ignorant; more than 20,000 of the 35,000-45,000 canola farmers in Canada are planting Roundup Ready canola seed (Broydo).
Let’s assume that Percy Schmeiser had heard that Roundup Ready canola existed. In order to realize that he wasn’t allowed to save his Roundup-tolerant seed, he would also have to know that the seed was patented—something he could have learned from other farmers, but something it would have been very hard for him to learn from Monsanto. Monsanto doesn’t advertise the fact that farmers are not allowed to replant Roundup Ready seeds. There is nothing on Monsanto’s website regarding the possibility of a lawsuit or other case against a seed-saving farmer. In fact, of the more than 3,000 words on the website directly relevant to canola growers in Canada, the only mention of patents or seed-saving is:
Why does Monsanto tell farmers they can't save Roundup Ready canola seed?
Because the valuable Roundup Ready technology in the seed is patented, it is illegal to plant seed saved from Roundup Ready canola. Companies that develop new technologies such as the Roundup Ready trait should share in the value created for end users. This is a positive thing for the entire agricultural industry because it encourages continued investment in the new technologies growers want and need. In addition, newly-purchased seed has many benefits, such as guaranteed purity and vigor.
Now, let’s turn to Percy Schmeiser’s claim that he didn’t know about Monsanto’s Roundup Ready canola. Judge MacKay states that:
[115] …. it is well settled that infringement is any act which interferes with the full enjoyment of the monopoly rights of the patentee as Mr. Justice Rothstein notes in Lishman v. Erom Roche Inc. (1996), 68 C.P.R. (3d) 72 at 77 (F.C.T.D.). Further, intention is immaterial, for "infringement occurs when the essence of an invention is taken", regardless of the intention of the infringer. (See Computalog Ltd. v. Comtech Logging Ltd. (1992), 44 C.P.R. (3d) 77 at 88 (F.C.A.).)
In a way, this is nothing new. Intention is generally judged to be immaterial, and therefore of little if any importance, in matters of patent infringement. Then again, few patented inventions are in the open and capable of spreading without human intervention.
It must be noted that not only is Monsanto’s invention capable of spreading without human intention; it is also capable of infiltrating other intellectual and material property. A plant variety registered under the Plant Breeder’s Rights Act is intellectual property. A canola crop, and the seeds produced from it, is the material property of the property of the farmer growing it. Regarding this potential for infiltration,
[124] For the defendants it is urged that a finding of infringement will adversely affect the longstanding right of a farmer to save his own seed for use for another crop. In particular it is urged that those who do not purchase Roundup Ready canola seed but find the plant invading their land would be precluded from saving their own seed for use another year since their crop may be contaminated without action by the farmer on whose land plants containing the patented gene are found.
[125] That clearly is not Mr. Schmeiser's case in relation to his 1998 crop. I have found that he seeded that crop from seed saved in 1997 which he knew or ought to have known was Roundup tolerant, and samples of plants from that seed were found to contain the plaintiffs' patented claims for genes and cells. His infringement arises not simply from occasional or limited contamination of his Roundup susceptible canola by plants that are Roundup resistant. He planted his crop for 1998 with seed that he knew or ought to have known was Roundup tolerant.
It is curious that Judge MacKay effectively confirms Percy Schmeiser’s statement while seeming to negate it. This may be the perfect way for Judge MacKay to avoid addressing the implications of his decision directly—and this is the statement in which he addresses it most directly.
Judge MacKay emphasizes Percy Schmeiser’s use of canola that had survived spraying with Roundup as an infringement on Monsanto’s patent. Yet by stating that "his infringement arises not simply from occasional or limited contamination of his Roundup susceptible canola by plants that are Roundup resistant," Judge MacKay implies that such occasional or limited contamination was also an infringement on Monsanto’s patent. By stating that in relation to the 1998 crop, the case faced by Percy Schmeiser is not one of his invasion of his land, and by not making any parallel statements in relation to his 1997 crop, Judge MacKay implies that Percy Schmeiser’s land was, or may have been, invaded by Monsanto’s gene in 1997. By putting these two implications together, Judge MacKay implies that an invasion onto a farmer’s land by Monsanto’s gene could be found to constitute an infringement on Monsanto’s patent.
Taking these two implications together, it is easy to see that this decision could be used to support a decision requiring a farmer whose seed was accidentally contaminated with a patented gene to pay the owner of the patent., just as easily as the oncomouse decision was used to support this decision. This case would be just as much a precedent for such a decision as the oncomouse case was for this decision.
Monsanto uses its Technology Use Agreements to its own advantage
Aside from his claims that Monsanto’s tests of Percy Schmeiser’s canola, Percy Schmeiser has one more core argument against Monsanto:
[94] Here the defendants urge that having introduced its invention for unconfined release into the environment without control over its dispersion, the plaintiffs, as inventor and licensee have lost any claim to enforcement of their rights to exclusive use. It is said for the defendants that Monsanto obtained regulatory approval for the "unconfined release" into the environment of the patented gene pursuant to the Seeds Regulations, C.R.C. c. 1400. Whether that is so is not significant in my view.
[95] …. Indeed it is urged this is so extensive that the spread of the invention cannot be controlled and Monsanto cannot claim the exclusive right to possess and use the invention. It is further urged that it was the plaintiffs' obligation to control its technology to ensure it did not spread and that Monsanto has not attempted to do so.
Judge MacKay counters this argument:
[96] …. With respect, the conclusion the defendants urge would ignore the evidence of the licensing arrangements developed by Monsanto in a thorough and determined manner to limit the spread of the gene. Those arrangements require agreement of growers not to sell the product derived from seed provided under a TUA except to authorized dealers, not to give it away and not to keep it for their own use even for reseeding. It ignores evidence of the plaintiffs' efforts to monitor the authorized growers, and any who might be considered to be growing the product without authorization. It ignores the determined efforts to sample and test the crops of the defendants who were believed to be growing Roundup Ready canola without authorization. It ignores also the evidence of Monsanto's efforts to remove plants from fields of other farmers who complained of undesired spread of Roundup Ready canola to their fields.
Here, whereas Percy Schmeiser makes two arguments, namely that Monsanto cannot control the spread of Roundup Ready and that Monsanto has not tried, Judge MacKay focuses on only the latter of these two arguments. The obvious implication of Judge MacKay’s conclusion is that, as long as Monsanto makes an effort to keep its Roundup Ready plants from spreading, Monsanto’s patent can be legally enforced. Taking a closer look at the variety of methods mentioned, it is noteworthy that all are meant to control human-induced spreading, rather than natural spreading, and therefore the implication is that as long as Monsanto makes an effort to keep people from causing the spread of its Roundup Ready seeds, Monsanto’s patent can be legally enforced.
Kinds of penalties possible
Monsanto asked for a variety of types of retribution from Percy Schmeiser:
[9] (a)An injunction restraining the defendants including all agents, employees, servants, persons under the control of or acting in concert with the defendants from: (i) using, growing, cultivating or harvesting any and all quantities of seeds and crop grown from said seeds containing genes or cells in accordance with any of claims 1, 2, 5, 6, 7, 22, 23, 26, 27, 28 and 45 of Canadian Letters Patent No. 1,313,830... (iii) offering for sale, selling, marketing, advertising, distributing or otherwise in Canada by any means any and all quantities of seed and crop grown from said seed containing genes or cells in accordance with any of claims 1, 2, 5, 6, 7, 22, 23, 26, 27, 28 and 45 of Canadian Letters Patent No. 1,313,830. (b) Delivery up by the defendants of any and all of the seeds or crop in the possession, care, custody or control of the defendants or for which the defendants have title to, in Canada, containing said patented genes or cells or produced according to said patented method or which in any way offend against such Orders as may be made herein; (c) General damages exclusive of interest and costs; or an accounting of profits of the defendants, whichever the plaintiffs may elect after discovery in a reference as to both or either as the plaintiffs may elect; (d) Punitive and exemplary damages; (e) Pre and post judgment interest on all monetary awards at a rate of at least 1% more than the prime banking lending rates; (f) The plaintiffs' costs of this action on a solicitor and client basis;...
In the end, Judge MacKay required Percy Schmeiser to give Monsanto any seeds from his 1997 and 1998 crop, as well as any seeds "known, or which ought to be known, by the defendants, to be Roundup tolerant." (MacKay, 132). It is notable that seeds from the 1997 crop are included here as well as seeds from the 1998 crop. Percy Schmeiser was also required to pay Monsanto $45,450 Canadian (MacKay, 140)—the amount it would have cost him to buy enough Roundup Ready seed from Monsanto for his entire 1998 crop—as well as interest on this amount (MacKay, 142) Here, it is notable that he is not required to pay what it would have cost him to grow his canola from Roundup Ready seed.
Part 6: What does this Mean for the Future of Farming?
So Percy Schmeiser gets nailed with a big fine, has to get rid of his saved seed, and appeals.
We’re still waiting for the results of that appeal, but Monsanto has already filed a counter-appeal, demanding even more money Judge MacKay ruled they should be paid.
What does this precedent actually mean for ordinary farmers? What does it mean about the future of farming as a lifestyle? What does it mean about control over the ways in which our food is produced?
Obviously, farmers are discouraged from growing Monsanto seed they haven’t bought from Monsanto—that is, they are discouraged from cheating. Obviously, they are encouraged to call Monsanto if they find volunteer Roundup Ready crops in their fields. But once a farmer (say, a canola farmer) has decided not to cheat on Monsanto, what does he decide to do? Fist of all, he can decide to buy from Monsanto. Second, he can buy seed from someone else every year and hope it doesn’t have any Roundup Ready canola. Third, he can continue to save his own seed, and run a risk of having it contaminated with Monsanto seed. Broydo states that many organic farmers in Canada have chosen a fourth option: they have simply stopped growing canola.
The option of buying seed from someone other than Monsanto could become less and less available. Patented seeds could infiltrate the crops of conventional growers who sell seed for sowing.
It would probably not be reasonable to expect Monsanto not to engineer Roundup Resistance into more plants; it would probably also not be reasonable to expect the company to confine itself to species that do not cross-pollinate or seed themselves over wide areas. By the time Monsanto’s patents on its current Roundup Ready plants (or rather, cells) run out, it may have a whole slew of new ones patented.
In Percy Schmeiser’s view, this is part of a larger problem: Monsanto is trying to get a monopoly (or virtual monopoly) on seed so that they can charge as much as they want. (Halweil, et al., 10). In fact, Halweil (10) implies that in many places, Monsanto already effectively has such a monopoly on corn, because the only large buyer in the area (Cargill) will not buy non-Monsanto corn.
This kind of monopoly is a significant part to a larger problem yet: farmers are earning less and less of what we pay for food, while more and more goes to transportation, marketing, processing, and farm inputs (such as seeds). In the U.S. in 1997, only 7 percent of the total costs of our food went to the farmers who grew it. The people who get paid for our food also get to make a lot of decisions about how it is grown—for example, by making the kinds of chemicals used a factor in the decision to loan or not to loan money to a farmer. Now, the people who are getting paid for our food are not the people who know and understand the land where it is grown. The people getting paid are not people who have strong vested interest in the ecology and community of a particular place.
Percy Schmeiser infringed on Monsanto’s patent. Nevertheless, his case is a key factor determining the rights of farmers (and particularly seed-savers) both insofar as it challenges the very validity of Monsanto’s patent under the actual circumstances, and insofar as it determines the way in which such a patent will be interpreted in court.
Works Cited
Broydo, Leora. "The Trouble with Percy." http://www.motherjones.com/news_wire/schmeiser.html. Consulted May 9, 2002
Cropchoice News. "Grower Nailed with Massive ‘Pirate’ Fine." September 19, ??2001?? www.cropchoice.com/leadstry.asp?recid=173. Consulted April 13, 2002.
Department of Justice, Canada. Consolidated Statutes and Regulations: Plant Breeders' Rights Act (1990, c. 20 ). http://laws.justice.gc.ca/en/P-14.6/index.html
Halweil, Brian. "Where Have All the Farmers Gone? World Watch. September/ October 2000. pp. 12-27.
Halweil, Brian; Danielle Nierenberg, and Curtis Runyan. "Seeds of Discontent." World Watch. Jaunuary/ February 2002.
Lackey, James. "Rapeseed/Canola (Brassica napus) http://www.aphis.usda.gov/biotech/rapeseed.html Consulted May 9, 2002
MacKay, Judge W. Andrew. "Monsanto Canada Inc. and Monsanto Company (Plaintiffs) and Percy Schmeiser and Schmeiser Enterprises Ltd. (Defendants): Reasons for Judgement." March 29, 2001. http://decisions.fct-cf.gc.ca/fct/2001fct256.html.
Monsanto website. www.monsanto.com
Nachtigal, Nicole C. "Casenote: A Modern David and Goliath: Farmer vs. Monsanto: Advising a Grower on the Monsanto Technology Agreement 2001." Great Plains Natural Resources Journal. Fall 2001.
Phillipson, Martin. "Commentary: Monsanto v. Schmeiser. http://www.biotech-info.net/phillipson_commentary.html Consulted May 9, 2002
Roush, Gwen. Personal communication, April 2002.
Schubert, Robert. "Mississippi Farmer Fights Monsanto Over Seed Saving: Mississippi Farmer Fights for the Right to Save Seed. http://www.organicconsumers.org/monsanto/saveseedsuit.cfm consulted May 9, 2002
Smith, Carroll. "Louisiana Cotton Farmer Loses to Monsanto." Louisiana Farmer. October 18, 2000. www.mindfully.org/GE/Monsanto-Beats-LA-Farmer.htm. Consulted April 4, 2002.
Smith, Carroll. Personal communication, April 2002.
Thomason, Dallas. Personal communication, April 2002.
| |
