David vs Monsanto - Part 2 of "Patents and Seeds"

Canola Fields
Image from Wikimedia Commons

This is part 2 of a multi-part series on Patents and Seeds. Previously, I covered the basics, including agreements between farmers and seeds suppliers, as well as the Schwarzeneggar gene (i.e. Terminator). This week, I'll mostly be writing about lawsuits between farmers and the patent holders on seeds.

According to Monsanto, they have never sued a farmer who has inadvertently used their seeds (this is a statement whose validity I'll explore throughout the series). They have, however, sued farmers who have allegedly replanted Monsanto seeds with knowledge of what they were doing. The most famous of these cases is against Canadian farmer Percy Schmeiser, whose story is now the subject of a documentary made by Journeyman Pictures "David versus Monsanto". This movie production company is also behind the documentary "Designer Babies & Gene Robbery", so I'm not sure how unbiased their productions may be. I actually watched a good chunk of the movie (which is just over 1 hour and freely available here) and my comments on it are below.

Anyway, here's a summary of the case as best I could tell based on court documents (see Section II entitled "Salient Facts" in the Canadian Supreme Court Case and the Federal Court Case): Mr Schmeiser had been a farmer in Saskatchewan for over 50 years (if you haven't been, you should go. Saskatoon is lovely). He grew canola, among other crops. He saved seeds from a portion of his field every year for planting the following year. In the mid-90's, a bunch of his neighbours switched to Round-Up Ready (RR) canola. He never purchased a license to plant the crop. In 1998, testing revealed that >90% of his 1000 acres were Round-Up Ready. The Federal court case states that Mr Schmeiser did not deny the presence of GM canola on his field but he claims that he did not deliberately plant or deliberately cause the planting of the seeds (see paragraph 11 of the document). Mr Schmeiser additionally stated that he had suffered substantial damage and loss due to the GM canola, because his own strain that he had been developing over the course of many years got contaminated. Additionally, he argued that in order to have infringed upon the patent, he must have sprayed his fields with Round-Up, and he claims that he did not do this. Finally, Mr Schmeiser's defense team argued that by releasing the gene into the environment in an uncontrolled manner, Monsanto had lost or waived their rights to an exclusive patent.

So Mr Schmeiser found out that there was Round-Up Ready growing on his field in 1997. He routinely sprayed the area around power-poles and ditches, and he noticed that a portion of the plants he had sprayed had survived the spraying, i.e. were Round-Up resistant (keep in mind that Round-Up is used to kill grass and plants - see previous post for more info on Round-Up). So he then conducted a test. He sprayed 3-4 acres of field along the roadside with Round-Up, and he noticed that about 60% of them survived, with a higher density along the roadside. This road is used by his neighbours for delivery/transport of canola seeds. He then used the seeds from that field, including the swath tested for Round-Up, to plant the following year's crop.

Mr Schmeiser's canola was tested by a private firm who conducts random audits of canola crops. The farms are either identified by Monsanto among their licensed farmers, or they receive anonymous tips/complaints. The private firm received an anonymous tip from someone who claimed that Mr Schmeiser was growing Round-Up Ready canola, when he didn't have the license for it.

Seriously... Wouldn't this make a fantastic whodunnit movie?? I can just imagine Clint Eastwood as Mr Schmeiser. And that anonymous tip would be left by someone who's face you can't see and is muffling their voice with a handkerchief, and later on in the trial you recognize the handkerchief sticking out of the Monsanto lawyer's pocket (played by Kevin Spacey). But the next-door neighbour also has the same handkerchief, so who was it??? But let's continue investigating this fascinating saga!!

Between 1997-1998, a series of samples were taken and tested. Some were by court order, but the first series were just from road-side samples (allegedly taken without trespassing, although this is heavily contested in the documentary). The samples showed from 0-98% Round-up tolerant canola. In 1999, Mr Schmeiser was advised to buy new seeds, since the lawsuit had started.

The judge in the Federal Court Case wrote that Mr Schmeiser's argument that Monsanto cannot control their patent/products defies all evidence, including the fact that Monsanto tests crops/fields, and removes "plants from fields of other farmers who complained of undesired spread of Roundup Ready canola to their fields." Two farmers testified that they had called Monsanto to have unwanted crops removed from their field, which had been done (in the documentary, Mr Schmeiser said that all the witnesses had been paid off by Monsanto). The judge also stated that Mr Schmeiser himself admitted to have kept seeds that had been shown to be Round-Up Resistant for replanting. The judge agreed with expert testimony that the wind/birds/bees alone would not account for the high concentration of GM crop found on the field, therefore, the patent had been infringed upon. He dismissed Mr Schmeiser's claim that in order for Monsanto's patent to be infringed upon, it would have required his fields to be sprayed with Round-up.

When it came to the all-important topic of money, the judge took middle ground. He threw out Monsanto's claim for exemplary damages. Monsanto was also seeking $105,000 representing the profit that Mr Schmeiser made on Monsanto's seeds/patent. The judge said that this was too high and asked for Mr Schmeiser and Monsanto to agree to a mutually beneficial amount within a given time period.

That's the Federal case. In the movie version that I'm writing in my mind, there's a fictional character (Mr Schmeiser's daughter) played by Emma Stone. She's a sassy, high-strung girl who always speaks her mind, and oddly enough, her lines in the movie sound a lot like my opinion. At some climactic point in the movie, she turns to her dad and says "Seriously Dad? You replanted those seeds and you're going to put up a fight? Why not just settle?? Do we really need this?"

But somehow, Clint Eastwood, aka Mr Schmeiser, keeps fighting and takes it all the way to the Supreme Court of Canada. Cut to a screenshot of Parliament Hill with the Canadian flag flying, and the tulips in full bloom. Ottawa's a beautiful place if you haven't visited. You should go. And yes, you're all thinking it so let's just get it out in the open: I'm a shill for Travel Canada :)

So what happened at the Supreme Court? The ruling was in favor of Monsanto, but when you read the court document, quite a few of the judges wrote partially in favor of Mr Schmeiser. The word "partially" is important here, because they didn't agree with all his arguments. The biggest issue that the judges had was whether or not higher life forms are patentable. Mr Schmeiser's team had argued that the patent was over the gene and the seed, not over the plant because plants are not patentable as higher life forms. Mr Schmeiser had ultimately "used" the canola plant and not the seed (at least I think that's what the court documents say... All this legalese is pretty new to me). A few of the Justices agreed with this argument, but not the majority. Ultimately, the majority of the Justices ruled that Mr Schmeiser had infringed on the patent by keeping and replanting the seed.

To better understand Mr Schmeiser's point of view, I watched the documentary. Actually, I only watched 30 minutes of it, because so much of what was said contradicted the official court documents. Within the first 5 minutes, Mr Schmeiser says (I transcribed the following quote from the movie): "This is what the judge ruled. Number One: If you are contaminated against your wishes by Monsanto's GMOs, you no longer own your seeds or plants, they become the ownership of a corporation, in this case Monsanto. He also ruled we were not allowed to use our seeds or plants again. He also ruled that all our profit from our 1998 canola crop goes to Monsanto."  Mr Schmeiser's point of view is that Round-Up resistant canola was introduced without much testing and that government officials were blinded by Monsanto's promise of better yields and more nutritious crops (which isn't factual, since Round-Up Ready's whole premise is that it is nutritionally equivalent). Mr Schmeiser also stated that he had developed his own strain of canola, which had taken him 50 years to develop, and that Monsanto's contamination of his fields destroyed all his work and effort (his claim to this unique strain was also in the Federal court case). I have to be honest: if you like conspiracy theories, you'll be drooling throughout this entire film. It's a goldmine. The documentary also interviewed a few other farmers, but I can't comment on their cases since I haven't read their court documents.

There are quite a few misleading "facts" in the documentary. In the 30 minutes that I watched, not once did it mention that Mr Schmeiser had replanted the Round-Up Ready seeds with full knowledge of what they were. It makes you doubt the awesomeness of his own canola strain. In the court documents that I read, no where did it state that if a farmer's field is contaminated against his wishes, then the seeds/profits go to Monsanto. If this is in a separate court document or perhaps in a section of the proceedings that I glossed over, it would be great if someone could send it to me. The documentary fails to address the laws surrounding patents. The fact of the matter is that Monsanto's seeds are patented, and if you're a farmer and you don't like Monsanto's business practices, then you don't have to plant Monsanto's seeds.

Well, I'm not sure how my movie would end. Maybe with a scene of Clint Eastwood staring over his field of canola and watching in despair as the wind from his neighbour's fields sweep towards his own? So, here's a thought, which I know many people out there also share. Monsanto has promised not to use its Terminator gene technology out of pressure from many groups. I understand that one of the arguments against Terminator technology is the fact that it would force farmers in developing nations to repurchase seeds, even if it's being used for subsistence farming.  But most farmers in developed countries already buy new seeds every year, whether these seeds are genetically modified or not. So why not create a strain of genetically modified crops with Terminator technology and market it only in developed nations? Wouldn't this be easier for both farmers, those growing conventional crops as well as organic farmers? These would decrease the amount of "genetic contamination" and all the hassles that come with it for both sides, and improve the success of co-existence? What are your thoughts on this?

So that's just a single case. For my next post on this topic, I'll keep exploring the topic of whether Monsanto has ever sued a farmer who inadvertently used their seeds.

On a personal note, the web (also known as a series of tubes) turned 25 this week, so I want to wish it a very happy birthday and acknowledge that I wouldn't be able to write this blog or even do research if it weren't around. It's pretty awesome that I can access Canadian Federal Court cases out in Northern California. But, the web can definitely be obnoxious and a pain in the rear. However, in the end, I've lived in 3 different continents and don't live anywhere close to my family, and its the interwebz that has made it possible by making it less lonely. My nephew thought that I lived in a place called "Skype" for the longest time, and my kid is headed in the same direction. Here's hopin' that the next 25 years fill it with more of the useful stuff than the toxic guck :)