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Context of 'May 2000: Seed Imported from Canada Contaminated with Genetically Modified Seed'

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Canada grants Monsanto patent no. 1313830 for glyphosate-resistant plant genes and cells. The patent grants the company the exclusive right, privilege, and liberty of making, constructing, using, and selling the invention in Canada until the patent’s expiration on February 23, 2010. [Canadian Patents Database, 2/23/1993; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 3 pdf file] Though Canada’s Plant Breeders’ Rights Act protects the intellectual property rights of seed developers, Monsanto felt a patent would provide more protection since it would deny farmers the right to save and re-use seeds containing the company’s patented genes and cells. [Federal Court of Canada, 6/22/2000, pp. 43 pdf file]

Entity Tags: Monsanto

Timeline Tags: Seeds

Percy Schmeiser, a farmer in Bruno, Saskatchewan, grows his crop of Argentine canola from seed saved the previous year. His crop is generally free of weeds and diseases common to canola and he claims higher-than-average yields. According to Schmeiser, he is able to grow his crops back-to-back in the same fields—a practice which typically results in diseased crops—because of his superior farming practices. The advantage of growing crops back-to-back in the same fields, according to Schmeiser, is that plants are able to utilize the benefits of the previous year’s fertilizer which allows the farmer to use less. Schmeiser also prefers to time the tilling of his fields in such a way that reduces the possibility of introducing diseased plant matter into the soil. Schmeiser uses Roundup, a broad-spectrum herbicide that is sprayed on the foliage of weeds, to clear his fields of vegetation for fallowing and before spring planting. He also uses the herbicide to kill of vegetation growing in roadside ditches and around telephone poles. To control any weeds growing among his crops he prefers a product that can be incorporated into the soil, or one that kills weeds as they germinate. He avoids using post-emergent herbicides that treat weeds after they have grown, since this weed control strategy allows the weeds to grow and thus consume much of the fertilizer and soil moisture that otherwise would be available for the crop. [Star Phoenix (Saskatoon), 6/14/2000; Federal Court of Canada, 6/22/2000, pp. 2-3 pdf file; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 14-15 pdf file]

Entity Tags: Percy Schmeiser

Timeline Tags: Seeds

Monsanto obtains Canadian regulatory approval for the unconfined release of its patented Roundup Ready gene (see February 23, 1993) into the environment. [Federal Court of Canada, 6/22/2000 pdf file]

Entity Tags: Monsanto

Timeline Tags: Seeds

Monsanto’s “Technology Use Agreement” requires farmers to pay a $12 ($15 CAD) technology fee for every acre they plant with Monsanto’s patented seed. Farmers pay the fee to the store where they purchase the seed. Under the terms of the agreement, farmers must deliver all of their crop to an elevator or crushing plant—they are prohibited from saving and replanting any harvested seed. They therefore must purchase new seed every year. They are also prohibited from making the seed available to other farmers, a practice known as “brown-bagging.” [Washington Post, 2/3/1999; Canadian Business, 10/8/1999] “Monsanto effectively gains a license to control the seed even after the farmer has bought, planted, and harvested it,” notes a 2005 report by the Center for Food Safety. [Center for Food Safety, 2005, pp. 13 pdf file] For thousands of years farmers have been planting the seeds they collected from the previous year’s harvest. Monsanto’s restrictions therefore cause great concern among organizations that deal with global food security since three-quarters of the world’s food producers are subsistence farmers who plant saved seeds. [Washington Post, 2/3/1999] The contract also gives Monsanto the right to come onto a farmer’s land to take plant samples for three years after a farmer has stopped using the company’s seed. Another stipulation in the contract specifies that farmers can only use Monsanto’s Roundup herbicide. This clause virtually guarantees Monsanto a dominant share in the non-selective herbicide market for its Roundup herbicide—which has no patent protection in Canada and whose patent in the US expires in 2000. Though many farmers are reportedly happy with the product, few like the provisions in this contract. [Washington Post, 2/3/1999; Canadian Business, 10/8/1999] “This is part of the agricultural revolution, and any revolution is painful. But the technology is good technology,” says Karen Marshall, a Monsanto spokeswoman. The company says the no-replant policy is necessary in order to recoup the millions of dollars it has spent on research and development. The company claims its genetically modified seeds are increasing farmers’ yields and making it possible for them to use more environmentally-friendly pesticides. [Washington Post, 2/3/1999]

Entity Tags: Karen Marshall, Monsanto

Timeline Tags: Seeds

Elmer Borstmeyer, a farmer who is a licensed Roundup Ready Canola grower, drives his grain truck by four of Percy Schmeiser’s canola fields. He later testifies in court that on one or two of his trips the tarp was loose, and he believes he lost a lot of canola seed. “The tarp acted like a cyclone,” he will recall. “I lost some seed. That’s for sure.” [Star Phoenix (Saskatoon), 6/16/2000; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 50 pdf file]

Entity Tags: Borstmeyer

Timeline Tags: Seeds

According to the 2000 court testimony of Percy Schmeiser’s field hand, Carlyle Moritz, swaths (swaths are the debris left over after a field has been mowed) from a neighbor’s field planted with Monsanto’s Roundup Ready Canola are blown onto one of Schmeiser’s fields. The swaths are subsequently picked up by a combine and deposited into the grain bins on that field. It is later suggested that some of the Roundup Ready Canola later found in Schmeiser’s crop may have grown from seeds carried onto his property in these swaths. [Federal Court of Canada, 6/22/2000, pp. 6 pdf file]

Entity Tags: Carlyle Moritz

Timeline Tags: Seeds

Percy Schmeiser has Roundup sprayed in the ditches and around the telephone poles adjacent to the road that runs along four of his nine canola fields. After the spraying, he notices that roughly 60 percent of the canola plants survived the application. Curious about the possibility that his canola may have developed a resistance to glyphosate, the active ingredient in Roundup, he sprays a trial strip about 100 feet wide in one of the fields that is next to the road. He later says in court that the total area represented a “good three acres.” As a result of the spraying, roughly 40 percent of the canola plants die. The surviving 60 percent are scattered in clumps and are mostly concentrated near the road. [Alberta Report, 9/6/1999; Leader Post (Regina, Saskatchewan), 6/13/2000; Federal Court of Canada, 6/22/2000, pp. 6 pdf file]

Entity Tags: Percy Schmeiser

Timeline Tags: Seeds

Wayne Derbyshire, an investigator with Robinson Investigation Canada Ltd, goes to Percy Schmeiser’s farm to obtain plant samples on behalf of Monsanto. Monsanto has hired Robinson Investigation to obtain the samples because the company believes that Schmeiser planted its patent-protected seeds and that he illegally purchased them from a Monsanto-licensed farmer. Monsanto’s “Technology Use Agreement” (see 1996) prohibits licensed farmers from making patented seeds available to other growers. (Selling seeds under the table in this manner is referred to as “brown-bagging.”) [Washington Post, 5/2/1999; Federal Court of Canada, 6/22/2000, pp. 15-17 pdf file; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 19 pdf file] One set of samples is taken from a field that later court testimony reveals may not have been Schmeiser’s. The second set of samples is taken from plants owned by Percy Schmeiser that are growing in the ditches and public right-of-way where Schmeiser earlier discovered the presence of Roundup-resistant canola (see Summer 1997). Derbyshire sends the samples to his boss, Mike Robinson, on August 27. [Federal Court of Canada, 6/22/2000, pp. 15-17 pdf file] When Schmeiser later learns of this sampling in 1998, he will accuse Robinson Investigation of trespassing (see March 1998). Farmers are permitted to grow and harvest crops in public right-of-ways, and on this basis, Schmeiser’s lawyer will later argue in court that the crops taken by Derbyshire were in fact property of Schmeiser. [Federal Court of Canada, 6/22/2000, pp. 15-17 pdf file] Philip Angell, Monsanto’s director of corporate communications, disputes Schmeiser’s allegation, telling the Washington Post in 1999 that it is not completely clear whether Derbyshire actually crossed Schmeiser’s property line. Angell also asserts that trespassing is neither a criminal nor a civil offense in Saskatchewan. [Washington Post, 5/2/1999]

Entity Tags: Percy Schmeiser, Robinson Investigation Canada Ltd, Monsanto, Wayne Derbyshire, Philip Angell

Timeline Tags: Seeds

Percy Schmeiser’s field hand, Carlyle Moritz, swaths and combines Schmeiser’s canola fields. The grain collected from the field where Roundup-resistant plants were earlier discovered (see Summer 1997) is stored in an old truck. The truck contains grain from both the area that Schmeiser sprayed and other areas of the same field. Schmeiser will use these seeds for his 1998 crop (see Spring 1998). [Federal Court of Canada, 6/22/2000, pp. 7 pdf file; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 18-19 pdf file]

Entity Tags: Carlyle Moritz

Timeline Tags: Seeds

On September 2, Mike Robinson sends the canola plant samples taken from Percy Schmeiser’s farm (see August 18, 1997) to Aaron Mitchell, the Monsanto employee who is in charge of the company’s investigation of Schmeiser. Each sample is said to contain between 10 and 40 pods. Upon receipt of the pods, Mitchell removes the seeds and places them in coin envelopes. He then sends them to Merle Waterfield of the Crop Science Department of the University of Saskatchewan for a grow-out test. Only four seeds from each sample are planted. All except one of the plants that germinate from these seeds survive an application of Roundup. The remaining samples are then returned to Mitchell. [Federal Court of Canada, 6/22/2000, pp. 17 pdf file; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 20 pdf file]

Entity Tags: Merle Waterfield, Aaron Mitchell, Mike Robinson

Timeline Tags: Seeds

Monsanto has become the world’s largest supplier of genetically modified seeds and the second largest seller of all seed types. Only Pioneer Hi-Bred, soon to be purchased by Dupont (see March 14, 1999), sells more seeds than Monsanto. Within the US, Monsanto directly or indirectly controls nearly half the corn germplasm market and most of the soybean market. Its dominant position in the market has been attributed to several factors: its two-year buying spree of other seed companies (see 1996-1998), its control of a large percentage of the biotech industry’s plant patents (see 1980s-2004), and the Technology Use Agreement (see 1996) it forces farmers to sign. According to a 2005 report by the Center for Food Safety (CFS), the availability of conventional seeds to farmers worldwide has been dramatically reduced as a result of Monsanto’s control of the market. “For many farmers across the country, it has become difficult if not impossible, to find high quality, conventional varieties of corn, soy, and cotton seed. Making matters worse, the direction of land-grant university research has been shifting away from producing new conventional seed varieties and toward biotech applications,” the report says. Indiana soybean farmer Troy Roush tells the Center, “You can’t even purchase them in this market. They’re not available.” Another farmer interviewed by the organization, a Texan, similarly states, “Just about the only cottonseed you can get these days is [genetically engineered]. Same thing with the corn varieties. There’s not too many seeds available that are not genetically altered in some way.” [Center for Food Safety, 2005, pp. 9-10 pdf file]

Entity Tags: Monsanto

Timeline Tags: Seeds

Mike Robinson, owner of a private investigation company that works for Monsanto, visits Percy Schmeiser at his farm. Schmeiser learns that Monsanto is investigating him and that an investigator working for Robinson took plant samples from his fields in 1997 (see August 18, 1997). Robinson says Monsanto suspects Schmeiser is illegally growing its patent-protected Roundup Ready Canola. Schmeiser accuses Robinson’s company of trespassing. [Star Phoenix (Saskatoon), 6/14/2000; Federal Court of Canada, 6/22/2000, pp. 21 pdf file; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 21 pdf file]

Entity Tags: Mike Robinson, Percy Schmeiser

Timeline Tags: Seeds

Monsanto employee Robert Chomyn requests and receives a sample of Percy Schmeiser’s harvested seeds from the Humboldt Flour Mills where Schmeiser brought his seeds for inoculation (see April 24, 1998). [Washington Post, 5/2/1999] The person who retrieves the sample is employee Morris Hofmann, who, according to Schmeiser, later admits (see After June 19, 2000) that he had either not supplied the seed, or that he supplied seed that was not Schmeiser’s. [Crop Choice, 5/24/2002] The samples provided to Monsanto have apparently been cleaned. (Schmeiser will later testify in court that the seeds he brought in for inoculation were bin-run seed, and thus full of chaff.) [Federal Court of Canada, 6/22/2000, pp. 19 pdf file] Chomyn sends the seeds on April 28 to Aaron Mitchell, Monsanto’s lead investigator in the case against Schmeiser. [Washington Post, 5/2/1999] Percy Schmeiser is neither consulted beforehand nor informed of the event until 1999. [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 22 pdf file]

Entity Tags: Aaron Mitchell, Percy Schmeiser, Rob Chomyn, Humboldt Flour Mills

Timeline Tags: Seeds

Percy Schmeiser plants 1,030 acres in nine of his fields with canola. He uses a mixture of seed saved from 1997 and seed saved from previous years. He knows that the 1997 seed was saved from a field where Roundup-resistant plants had been discovered (see Summer 1997). [Federal Court of Canada, 6/22/2000 pdf file; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001 pdf file]

Entity Tags: Monsanto

Timeline Tags: Seeds

Monsanto files a lawsuit against Percy Schmeiser alleging that in 1997 or earlier Schmeiser illegally obtained Roundup Ready Canola seed from an unnamed Monsanto-licensed farmer, planted his fields with the seed, and then saved the seed for the following year’s planting without ever having entered into an agreement with Monsanto. In doing so, Monsanto claims, Schmeiser infringed on its patent. According to Schmeiser, the presence of Monsanto’s patented genes in his crop was a result of infestation, possibly resulting from wind-blown pollen or seed. He recalls that in 1997 (see Summer 1997), after spraying Roundup in his ditches and around telephone poles adjacent to his canola field, approximately 60 percent of the canola plants in that area survived. He then proceeded to spray a trial strip roughly 100 feet wide in the adjacent field which also revealed the presence of Roundup-resistant canola. In 1998, he used the seed from that field mixed in with seed from previous years to plant his 1998 crop (see Spring 1998). [Alberta Report, 9/6/1999; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 5 pdf file]

Entity Tags: Percy Schmeiser, Monsanto

Timeline Tags: Seeds

Monsanto secures a court order permitting the company to take plants from Percy Schmeiser’s canola fields. Monsanto believes that Schmeiser is illegally growing the company’s patent-protected Roundup Ready Canola. Schmeiser is aware that some of his canola is resistant to Roundup but denies that this is the result of any willful action on his part. He claims to have never purchased or otherwise obtained Monsanto’s Roundup Ready Canola pedigree seed. He thinks the presence of plants resistant to Roundup is the result of cross-pollination or seeds blown from a nearby farm or off passing grain trucks. [Washington Post, 2/3/1999] Monsanto, in a letter to the court dated August 12, says it will notify Schmeiser’s lawyer before entering onto Schmeiser’s property. The sample is to be collected in the presence of Schmeiser and split between Monsanto and Schmeiser so each party can have it tested separately. According to Schmeiser, Don Todd (Robinson Investigation) and James Vancha (Monsanto), arrive unannounced and do not allow him to accompany them. However, Todd and Vancha will dispute Schmeiser’s version of events in court testimony, saying the farmer had declined to participate because of a “bad leg.” Instructions contained in the court order do not specify that they use any sort of representative sampling technique that could be used to determine what percentage of Schmeiser’s canola plants are resistant to Roundup. Rather, since Monsanto is interested only in proving the presence of the patented gene in Schmeiser’s fields, Todd and Vancha are just asked to randomly collect a total of 54 samples from Schmeiser’s 9 fields (27 for Monsanto and 27 for Schmeiser). In spite of the fact that no method is employed to ensure that the composition of the samples are representative of the composition of the fields, Monsanto will later cite test results based on these samples when making assertions in court about the percentage of Roundup-resistant plants growing on Schmeiser’s farm (see January 1999) [Federal Court of Canada, 6/22/2000, pp. 21 pdf file; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 24-25 pdf file]

Entity Tags: Percy Schmeiser, Robinson Investigation Canada Ltd, Don Todd, James Vancha, Monsanto

Timeline Tags: Seeds

Aaron Mitchell, Monsanto’s lead investigator in the Percy Schmeiser case, obtains a back-up sample set of the canola pods that were collected from Schmeiser’s property the previous summer (see August 12, 1998) from James Vancha who has been storing the pods in his freezer. Mitchell takes the seeds to Leon Perehudoff of Prairie Plant Systems who assists him with the grow-out test. Perehudoff will later testify in court that the seeds he receives are clean, though the original sample set of canola pods contained debris. Mitchell claims that he cleaned the seeds by hand even though there would have been no reason to do so in order to grow the seeds. When he is later asked in court to explain how he did this, he will respond that he did it by hand and that it took him about an hour. Another witness, Lyle Friesen, a plant biologist at the University, will testify that the task should have taken “days” to do by hand. All of the seeds included in Mitchell’s grow-out test germinate despite the fact that neither Monsanto’s St. Louis lab nor Friesen (see (August 26, 1999)) are able to so because the seeds were improperly stored and/or moldy. After the plants have grown, Mitchell takes them away to spray them and then later returns with them so he and Perehudoff can count the survivors. For one of the samples, he records an impossible survivor rate of 106 percent—there are apparently more plants in the sample after the spraying than there were before. He then averages this percentage rate with results from the other samples to come up with an average survival rate of 92-96 percent, which Monsanto will later cite as the percentage of Roundup Ready Canola plants in Schmeiser’s 1998 fields. As Schmeiser’s lawyer will later note in court, the samples were not collected using a methodology that would have ensured that the composition of the samples were representative of the composition of the fields. [Federal Court of Canada, 6/22/2000, pp. 23-25 pdf file]

Entity Tags: Leon Perehudoff, James Vancha, Aaron Mitchell

Timeline Tags: Seeds

On the advice of his lawyer, Percy Schmeiser purchases new canola seeds for his 1999 crop instead of planting the seeds retained from his 1998 harvest. Schmeiser has been using saved seed since 1994 and says that this decision causes him great distress. [Star Phoenix (Saskatoon), 6/14/2000]

Entity Tags: Percy Schmeiser

Timeline Tags: Seeds

Canadian farmer Charlie Boser discovers between 300 and 500 Roundup Ready Canola plants in a field that was sprayed twice for weeds with Roundup mixtures. “Everything along that quarter was burnt to a crisp quite brown except for the canola,” he later testifies in court. The plants had apparently come to his fields from the east. “I was a little upset to have this contaminant on my land. I’d never used a Roundup Ready Canola.” He contacts Monsanto, who compensates him for one of his spray applications and pays the person who had done the chemical fallow to “get some kids to come pick it out,” according to Boser. A Monsanto representative later informs him that a field adjacent to his was planted with Roundup Ready Canola. [Alberta Report, 9/6/1999; Star Phoenix (Saskatoon), 6/16/2000; Western Producer (Saskatoon), 6/22/2000]

Entity Tags: Monsanto, Charlie Boser

Timeline Tags: Seeds

Percy Schmeiser gives the 27 canola pods that were collected by Monsanto a year before (see August 12, 1998) to his lawyers who then send them to the University of Manitoba to be tested for the presence of Monsanto’s Roundup Ready Canola genes. Lyle Friesen, a plant biologist at the university who conducts the tests, finds that 15 of the samples are too moldy to grow. The seeds in the other 12 samples germinate and are sprayed with Roundup. Survival rates in these samples range from 0 to 67 percent. As Schmeiser’s lawyer will later note in court, the people hired by Monsanto to obtain the samples did not collect them using a methodology that would have ensured that the composition of the samples were representative of the composition of the fields (see August 12, 1998). Therefore, according to Schmeiser’s lawyer, the samples can only indicate “what is in the bags, not what is in the fields.” Also included in the samples sent to Friesen are the seeds (the authenticity of which Schmeiser challenges (see June 5, 2000-June 21, 2000)) that were returned to Schmeiser by Saskatchewan Wheat Pool (who took over operations of Humboldt Flour Mills in 1998) earlier in the year. Tests performed on these seeds indicate that between 95 and 99 percent contained the patented gene. [Federal Court of Canada, 6/22/2000, pp. 22 pdf file; Crop Choice, 5/24/2002]

Entity Tags: Percy Schmeiser, Lyle Friesen

Timeline Tags: Seeds

Aaron Mitchell, Monsanto’s lead investigator in the Percy Schmeiser case, sends seed samples that were taken from Percy Schmeiser’s farm in 1997 (see August 18, 1997) to Keith Downey, emeritus professor of Agricultural Canada and University of Saskatchewan. Mitchell has been in possession of the seeds since the fall of 1997. The seeds were stored in coin envelopes. When Downey receives the seeds there are very few left—one envelope only contains two seeds, while the envelope with the most seeds has only about 30. According to Schmeiser, the envelopes should contain between 200 and 800 seeds each. Schmeiser, who has been invited to witness the planting of the seeds, later claims that the sample includes numerous cleaver seeds. Schmeiser also says that the sample includes cracked seeds and debris indicating that they had been through a combine. If these samples were indeed the ones taken in 1997, there should be no cleaver seeds, cracked seeds, or debris, Schmeiser’s lawyer will later note in the closing argument of Schmeiser’s June 2000 trial (see June 5, 2000-June 21, 2000). Downey’s grow-out of these seeds results in a 50 percent germination rate. All the resulting plants prove resistant to Roundup. [Federal Court of Canada, 6/22/2000, pp. 17 pdf file; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 20 pdf file]

Entity Tags: Percy Schmeiser, Keith Downey, Aaron Mitchell

Timeline Tags: Seeds

Lyle Friesen, a plant biologist at the University of Manitoba, obtains seed samples—presumably from Percy Schmeiser’s 1997 harvest (see August 18, 1997)—from Saskatchewan Wheat Pool (which took over Humboldt Flour Mills). He performs a grow-out test of these seed samples and finds that as many as 98 percent of them are Roundup-resistant. [Federal Court of Canada, 6/22/2000, pp. 22 pdf file; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 26-27 pdf file]

Entity Tags: Lyle Friesen

Timeline Tags: Seeds

Canadian canola seeds sold to Europe by Advanta Canada are discovered to be contaminated with a small percentage of genetically modified (GM) seeds. [Canadian Press, 6/4/2000] The contamination resulted from pollen that was blown in from a farm growing GM crops more than a kilometer away. European citizens and governments are outraged and farmers in some of the countries plow their crops under. [Globe and Mail, 5/25/2000; New Scientist, 12/23/2000]

Entity Tags: Advanta Canada

Timeline Tags: Seeds

Monsanto’s 2005 “Technology Use Agreement” (TUA) includes several provisions that were not present in its 1996 agreement (see 1996). The company’s TUAs have been heavily criticized by farmers and groups concerned about food security and farmers’ rights because of its provisions barring farmers from saving and replanting seed. Another part of the contract that has been unpopular among farmers is the requirement that farmers grant Monsanto the right to come onto a farmer’s land to take plant samples any time during the first three years after a farmer has stopped using the company’s seed. Some of the provisions that have been added since 1996 state the following:
bullet All legal disputes (except those involving cotton) must be settled at the US District Court for the Eastern District of Missouri or the Circuit Court of the County of St. Louis.
bullet Farmers must give Monsanto permission to access third-party records of the farmers’ activities, such as those held by USDA Farm Service Agency (FSA). The Center for Food Safety notes: “The breadth of this provision allows the company to obtain documents that are not necessarily directly related to a farmer’s seed or chemical purchase, permitting Monsanto to assess a grower’s financial state.”
bullet Farmers are not required to do anything to prevent contaminating neighbors’ fields with Monsanto’s genes. Recognizing that a “minimal amount of pollen movement (some of which can carry genetically improved traits) between neighboring fields is a well known and normal occurrence in corn seed or grain production,” the agreement suggests that farmers planting the company’s seeds are not under any obligation to prevent the contamination of neighboring non-transgenic crop fields. Conventional farmers “assume the responsibility and receive the benefit for ensuring that their crop meets… specifications for purity,” the agreement asserts.

Entity Tags: Monsanto

Timeline Tags: Seeds

After Percy Schmeiser and Monsanto fail to reach an out-of-court settlement, Monsanto takes the 69-year-old canola farmer to court. Monsanto claims that in 1998, Schmeiser planted 1,030 acres with seed from his 1997 canola crop containing a gene or cell that was protected by Monsanto’s 1993 (see February 23, 1993) patent on glyphosate-resistant plants and that he did so without permission from Monsanto. The company further alleges that in doing so Schmeiser illegally used, reproduced, and created genes, cells, plants, and seeds containing the patent-protected genes and cells. According to Monsanto, it is of no consequence how the gene arrived in Schmeiser’s field; his mere planting of the gene constitutes infringement. The company is suing for the $15 CAD/acre technology fee that other farmers using the seed are required to pay (A total of $15,450 CAD), the profits resulting from Schmeiser’s 1998 crop ($105,000 CAD, according to Monsanto), interest, exemplary damages ($25,000 CAD), and court costs. [Toronto Star, 6/3/2000; Star Phoenix (Saskatoon), 6/6/2000; Star Phoenix (Saskatoon), 6/21/2000] Terry Zakreski, Schmeiser’s attorney, does not deny that the some of the canola plants in Schmeiser’s 1998 crop contained Monsanto’s patent-protected Roundup-resistant gene. However, he rejects Monsanto’s claim that Schmeiser infringed on the company’s patent when he planted the crop since the presence of Monsanto’s Roundup Resistance canola was not a result of any deliberate action on the part of Schmeiser. The defense suggests that Monsanto’s patented-gene arrived on Schmeiser’s property by way of pollination or wind-blown seed. [Alberta Report, 9/6/1999]
Plaintiff Argument--Tests show high percentage of Roundup in sample taken from Schmeiser's 1997 crop - In spite of the fact that Monsanto’s argument does not hinge in anyway on how its Roundup Ready Canola came to grow on Schmeiser’s fields, it nonetheless attempts to make the case that the alleged high percentage of Roundup-resistant canola in Schmeiser’s 1997 crop was too high to have resulted solely from cross-pollination or wind-blown seed as Schmeiser claims. As evidence of this, Monsanto cites tests (see Fall 1997) (see January 24, 2000) performed on plant samples taken in August of that year by Wayne Derbyshire (see August 18, 1997). Those tests found that the samples contained a very high percentage (more than 90 percent) of seeds containing the patented genes. Monsanto also introduces as evidence, tests performed on seeds given to Monsanto by Humboldt Flour Mills (see Between April 24 and April 28, 1998), the company that had inoculated Schmeiser’s seeds prior to the 1998 planting season. Tests later performed on those seeds found that 95 to 98 percent of them contained Monsanto’s patented gene (see April 2000; (August 26, 1999)). [Toronto Star, 6/6/2000; Star Phoenix (Saskatoon), 6/6/2000]
Plaintiff Argument--Tests show high percentage of Roundup in Schmeiser's 1998 crop - Monsanto also presents evidence aimed at demonstrating that Schmeiser’s 1998 crop consisted almost entirely of plants containing Monsanto’s patented Roundup-resistant gene. As evidence, it cites tests performed on samples that were taken from Percy’s crop in the summer of 1998 (see August 12, 1998). The tests done by Aaron Mitchell of Monsanto on these samples indicated that between 92 and 97 percent of the seeds in the samples were resistant to Roundup (see January 1999). [Toronto Star, 6/6/2000; Star Phoenix (Saskatoon), 6/6/2000]
Plaintiff Argument--Schmeiser used Roundup on his 1998 crop - In an effort to prove that Schmeiser’s 1998 crop consisted mostly of Roundup Ready Canola and that Schmeiser sought to take advantage of its resistance to the herbicide, Monsanto cites the testimony of Wesley Niebrugge, a farmer and employee of the Esso bulk dealership in Bruno. Niebrugge claims that in 1997 and 1998 Schmeiser’s farm hand Carlyle Moritz told him that Schmeiser had sprayed his fields with Roundup after having seeded his fields with Roundup Ready Canola. Monsanto argues that in spite of Schmeiser’s claims that he did not use Roundup on his crops in 1998, there is no evidence that he used Muster and Assure herbicides as claimed. Furthermore, Monsanto provides evidence that Schmeiser purchased 720 liters of Roundup in 1998. [Star Phoenix (Saskatoon), 6/17/2000]
Plaintiff Argument--Roundup Ready Canola presence in Schmeiser's fields cannot be explained by windblown seed - Monsanto also argues that seed blown off the top of passing grain trucks could not have been responsible for the Roundup-resistant canola plants that Schmeiser found in his field more than 100 feet away from the road in 1997 (see Summer 1997). As evidence, Monsanto cites the testimony of Barry Hertz, a mechanical engineer hired by Monsanto because of his expertise in road vehicle aerodynamics. Hertz tells the court that according to his own calculations, canola seed blown off the top of a moving grain truck would fly no more than 8.8 meters from the road. His calculations are based on the weather conditions recorded at the Saskatoon airport in October and May of 1996, 100 kilometers away from Schmeiser’s farm. [Star Phoenix (Saskatoon), 6/9/2000; Canadian Press, 6/9/2000]
Plaintiff Argument--Schmeiser segregated his crop - Monsanto argues that Schmeiser segregated his crop when he chose to save and plant the seeds harvested from the same field where he knew Roundup Ready plants had grown. The company’s lawyer questions why he would have done so if he considered those plants to be a contaminant on his land. [Star Phoenix (Saskatoon), 6/15/2000]
Defense Argument--Schmeiser did not undertake any deliberate action to obtain Monsanto's Roundup Ready Canola - According to Schmeiser, the presence of Monsanto’s patented gene in his crop was not a result of any deliberate action he took. Rather he suggests that his crop was likely contaminated with Monsanto’s genes from wind-blown pollen or seed.
bullet Zakreski notes that there is no evidence whatsoever that Schmeiser illegally obtained Roundup Ready Canola seed. Monsanto has never identified anyone who may have sold Roundup Ready Canola seed to Schmeiser, and Schmeiser has never admitted to having acquired the seed. Monsanto employee Aaron Mitchell candidly testifies to this fact on the stand. [Star Phoenix (Saskatoon), 6/9/2000; Star Phoenix (Saskatoon), 6/13/2000]
bullet Percy Schmeiser’s field hand, Carlyle Moritz, testifies that swaths from a neighboring canola field planted with Monsanto’s Roundup Ready Canola blew onto one of Schmeiser’s fields in 1996 (see Fall 1996). The swaths were subsequently picked up by a combine on Schmeiser’s fields and deposited in the grain bins on that field. The defense believes it is possible that some of the seed from that bin was used to plant Schmeiser’s 1997 crop. [Federal Court of Canada, 6/22/2000, pp. 6 pdf file]
bullet Schmeiser recalls that in 1997 (see Summer 1997), after spraying Roundup in his ditches and around telephone poles adjacent to his canola field, approximately 60 percent of the canola plants in that area survived. Curious about the possibility that his canola plants may have developed a resistance to Roundup, he sprayed a trial strip about 100 feet wide in one of the fields that is next to the road. The total area of the strip was a “good three acres,” he says. As a result of the spraying, roughly 40 percent of the canola plants died. The surviving 60 percent were scattered in clumps and were mostly concentrated near the road. He believes that the uneven presence of clumps that were thicker closest to the road and thinner towards the center of the field is evidence that plants had been sown from seed coming from the direction of the road, probably from seed blown off passing grain trucks in late 1996.
bullet Zakreski argues that Schmeiser’s plants may have been pollinated with pollen transported by wind or other means from a neighboring farm. He notes that Monsanto scientist Robert Horsch has acknowledged in court testimony that the company’s dominant Roundup-resistant gene would be present in any pollen from a Roundup Ready Canola plant and therefore could pollinate non-transgenic plants. Zakreski also cites the testimony of Monsanto witness Keith Downey that “one hungry bee” is capable of traveling a great distance. Even though Monsanto employee Aaron Mitchell testified that the closest field planted with Monsanto licensed Roundup Ready Canola seed was approximately five miles away, Zakreski notes that it is impossible to state for sure that someone was not illegally growing it closer. [Star Phoenix (Saskatoon), 6/6/2000; Federal Court of Canada, 6/22/2000, pp. 28 pdf file; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 16 pdf file]
bullet Schmeiser’s neighbor Elmer Borstmeyer testifies that he grew Roundup Ready Canola under agreement for four years beginning in 1996 and that he drove his truck by four of Schmeiser’s fields after harvest. He recalls that on one or two of his trips, the tarp was loose, and he believes he lost a lot of canola seed. “The tarp acted like a cyclone,” he said. “I lost some seed. That’s for sure” (see Fall 1996). [Star Phoenix (Saskatoon), 6/16/2000; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 50 pdf file]
bullet Schmeiser’s lawyer cites other cases where farmers’ fields have been contaminated with Monsanto’s Roundup Ready Canola, including farmers Charles Boser (see Summer 1999) and Louis Gerwing (see Summer 1999). He also notes that just a few weeks before, Canadian canola seeds sold to Europe by Advanta Canada were discovered to have been contaminated with a small percentage of genetically modified (GM) seeds (see May 2000). [Star Phoenix (Saskatoon), 6/16/2000]
bullet Zakreski also addresses the various tests that were conducted on samples taken from Schmeiser’s 1997 and 1998 crops. Monsanto had used some of the tests as evidence to argue that more than 90 percent of the plants in some of Schmeiser’s fields contained Monsanto’s patented gene. Of the samples that were taken by Wayne Derbyshire in 1997 (see August 18, 1997) and used as the basis for two grow-out tests (see Fall 1997) (see January 24, 2000), and of the samples that were taken by Don Todd and James Vancha in 1998 (see August 12, 1998) and used for a grow-out test performed by Aaron Mitchell (see January 1999), Zakreski argues that they were all (1) taken illegally, and should not be admitted by the court; (2) taken using a methodology that was not intended to be representative of the fields from which they were taken; and (3) were not obtained, stored, or tested in a scientific manner or by independent parties. [Federal Court of Canada, 6/22/2000 pdf file]
bullet Of the samples that were handled by Aaron Mitchell before being sent to and tested by Keith Downey on January 24, 2000 (see January 24, 2000), Zakreski questions (1) why so many seeds were apparently missing from the coin envelopes; and (2) why there were cleaver seeds, debris, and cracked seeds present in this sample—presumed to have been taken directly from canola pods. [Federal Court of Canada, 6/22/2000, pp. 18 pdf file]
bullet Zakreski also challenges the authenticity of seeds used in a grow-out test that was performed by Aaron Mitchell in January 1999 (see January 1999). He asks how it came to be that seeds Mitchell brought to Leon Perehudoff were clean when in fact the seeds in the original sample contained debris. Though Mitchell claims to have cleaned the seeds by hand in a matter of an hour, plant biologist Lyle Friesen, another witness, testifies that such a task should have taken “days” to do by hand. Zakreski also notes that is unclear why the seeds Mitchell planted enjoyed a 100 percent germination rate when Friesen and experts at Monsanto headquarters in St. Louis were able to get only about half their seeds—presumably taken the same day as Mitchell’s seeds—to grow. [Federal Court of Canada, 6/22/2000, pp. 23-25 pdf file]
bullet Additionally, Zakreski questions the authenticity of the seed samples that Monsanto obtained from Humboldt Flour Mills (see Between April 24 and April 28, 1998). The seeds tested by Monsanto had apparently been cleaned, when in fact the seeds supplied to the mill by Schmeiser (see April 24, 1998) were bin-run seeds full of chaff. No evidence is provided by the plaintiff to explain how the seeds cleaned themselves. [Federal Court of Canada, 6/22/2000, pp. 19 pdf file]
Defense Argument--One must use a patented invention for there to be infringement - Zakreski argues that for a patent infringement to occur, one must use the invention. His argument can be summarized as thus: (1) Monsanto has a patent on a gene, not a plant; (2) it is not a patent infringement to merely possess a patented invention, one must either use, or intend to use, the patented invention in order for there to be an infringement; (3) the act of growing a plant that contains the patented gene does not imply the use of that gene since that gene is not needed for the plant to grow; (4) the use of a patented invention necessarily entails that the “object,” or “essence,” of a patent be utilized, which in this case is a cell’s resistance to Roundup; (5) to use Monsanto’s invention, one must therefore either use, or intend to use, Roundup on one’s crop; and (6) because Schmeiser did not use Roundup on his crop, he did not infringe on Monsanto’s patent. The evidence Zakreski provides to support this argument can be summarized as follows: (a) there was no motive for Schmeiser to acquire and use Monsanto’s patented technology; (b) Schmeiser did not attempt to segregate seed known to be Roundup-resistant from the rest of his seed and therefore had no intention of using the properties of Monsanto’s patented gene; and (c) Schmeiser’s 1998 crop was a mixture of Roundup-resistant and non-resistant canola plants and therefore Schmeiser derived no benefit from Monsanto’s technology; and (d) Schmeiser did not, in fact, use Roundup on his 1998 crop.
a -
bullet Using Roundup Ready Canola would have made it impossible for Schmeiser to grow canola back-to-back, his preferred method of growing canola (see 1994-1998). [Federal Court of Canada, 6/22/2000, pp. 2-3 pdf file]
bullet The only benefit of using Roundup Ready Canola is that it allows one to spray Roundup herbicide on one’s crop. Roundup can only be applied after the weeds have germinated and there is weed foliage to spray. Schmeiser prefers not to spray weeds in his crop at this late stage because it would allow the weeds to use much of the soil’s moisture that would otherwise be available to the crop. Instead, he uses products that can be incorporated into the soil, or that kill weeds as they germinate (see 1994-1998). Furthermore, Schmeiser notes that Roundup is thought to leave a residue in the soil that kills mycorrhiza, a beneficial fungus that helps plants absorb nutrients in the soil. [Federal Court of Canada, 6/22/2000, pp. 3 pdf file]
bullet Schmeiser prefers to save his seeds rather then buy new seeds each year, which he considers to be an unnecessary expense. [Federal Court of Canada, 6/22/2000, pp. 2 pdf file]
bullet There was nothing wrong with Schmeiser’s seed stock that would have warranted interest in acquiring new seed. Schmeiser’s crops have performed much better than others in the area and are relatively free of common diseases that affect canola. Schmeiser has never had to file an insurance claim for his crop and because of this he receives a discount on his crop insurance premium. [Federal Court of Canada, 6/22/2000, pp. 2 pdf file]
b -
bullet Zakreski notes that in 1997, Schmeiser made no attempt to segregate the Roundup-resistant plants from the non-resistant plants in his fields. His farmhand, Carlyle Moritz, saved the seed from both the area where Roundup-resistant crop was known to have grown and other areas where these plants were not known to have grown (see Fall 1997). In spring 1998, these seeds were combined with bin-run seeds from previous years to sow Schmeiser’s canola crop (see Spring 1998). [Federal Court of Canada, 6/22/2000, pp. 11 pdf file]
c -
bullet Schmeiser’s attorney argues that Schmeiser had nothing to gain in planting a mixed crop of Roundup-resistant and non-resistant canola plants. “The advantage in growing Roundup Ready Canola is that a grower may spray in-crop with Roundup and achieve broad spectrum weed control. If a grower plants a crop which is a mixture of Roundup Ready and Roundup susceptible canola, he cannot spray in-crop with Roundup. To do so would be suicide.” [Federal Court of Canada, 6/22/2000, pp. 28-29 pdf file]
d -
bullet Schmeiser says that in 1998 the herbicides he used on his crops were the brand-names Muster and Assure. It would have made no sense, Zakreski argues, for Schmeiser to have knowingly planted Roundup Ready Canola. “It would make no sense if he knowingly proceeded to seed Roundup Ready Canola and not use Roundup,” notes Zakreski. [Leader Post (Regina, Saskatchewan), 6/13/2000] Schmeiser, however, as noted by the plaintiff, was unable to produce receipts showing he had used Muster and Assure on his canola. He explains that the Esso bulk dealership where he lives changed hands after 1998 and the new owners were unable to locate the receipts. [Star Phoenix (Saskatoon), 6/15/2000]
bullet Weed ecology expert Rene Van Acker testifies that the test results from Manitoba (which identified the presence of non-resistant canola plants in a sample taken from Schmeiser’s fields) (see (August 26, 1999)) prove that Schmeiser did not spray his fields with Roundup. If he had sprayed his fields, he would have killed much of his crop. “It would make no sense for a producer to sow Roundup Ready Canola and not use Roundup,” Van Acker recently wrote in a report requested by the defense. [Star Phoenix (Saskatoon), 6/17/2000]
bullet While Schmeiser did purchase 720 liters of Roundup in 1998, as noted by the plaintiff, Schmeiser says that he used this quantity of Roundup to clear his fields before spring planting and also to clear the weeds in the roadside ditches and around telephone poles. Schmeiser testifies that he would have used 515 liters of the herbicide to chem fallow his 1,030 acres leaving 205 liters for the ditches and right-of-ways. Zakreski’s final brief includes a table depicting Schmeiser’s use of the chemical in 1996, 1997, and 1998, demonstrating that the amount of Roundup used in 1998 was entirely consistent with the previous two years. Additionally, Schmeiser explains that if he had planted 100 percent Roundup Ready Canola that year, following Monsanto’s recommended application rate of 1 liter/acre, he would have needed an additional 1,000 liters, a claim that not one of Monsanto’s witnesses attempts to challenge. [Federal Court of Canada, 6/22/2000, pp. 13 pdf file]
Defense Argument--Monsanto's patent does not confer property rights - Another argument advanced by Schmeiser’s attorney is that because Monsanto’s patent does not confer ownership rights of the gene to the company, only intellectual property rights, the insertion of that gene into someone’s plant cannot possibly make that plant property of Monsanto. If the pollen produced by a Roundup Ready Canola plant fertilizes a non-transgenic plant owned by another farmer, Monsanto can claim no property rights to the plant’s offspring. [Federal Court of Canada, 6/22/2000, pp. 38-39 pdf file]
bullet In support of this argument, Zakreski cites the similarity of this case to “stray bulls” cases in which the owners of cows impregnated by stray bulls owned by someone else have successfully sued for damages on the basis that early breading stunted the growth of their cows. In no such cases, notes Zakreski, has an owner of a stray bull attempted to claim any rights to the stray bull’s offspring. [Federal Court of Canada, 6/22/2000, pp. 38-39 pdf file]
bullet Zakreski also states that the law of admixture applies to this case. The premise of that law is as follows: “… where a man willfully causes or allows property of another to inter-mix with his own without the other’s knowledge or consent, the whole belongs to the latter…”. [Federal Court of Canada, 6/22/2000, pp. 38-39 pdf file]
Defense Argument--Monsanto waved its patent rights when it released its invention unconfined into the environment - The defense also argues that Monsanto waived the patent rights on its invention when it failed to control the spread of its invention after it was released into the environment unconfined. The lawyer writes: “Had [Monsanto] maintained control over its invention, it may have maintained its exclusive rights. However, inventions do not usually spread themselves around. They do not normally replicate and invade the property and lands of others. Ever since regulatory approval for this invention was given, it has been released unconfined into the environment. Mr. Schmeiser has produced ample evidence of just how extensive the release is in the Rural Municipality of Bayne, where he farms. Any exclusive rights Monsanto may have had to its invention were lost when it lost control over the spread of its invention. Surely, the exclusive right to possess such an invention cannot be maintained if the spread of the invention cannot be controlled. The unconfined and uncontrolled release into the environment is an act by Monsanto completely inconsistent with its exclusive rights. It cannot on the one hand unleash self-propagating matter uncontrolled into the environment and then claim exclusively wherever it invades. It can, by this, be taken by its conduct to have waived its statutory rights.” Zakreski warns that giving Monsanto property rights to any and all genes or plants that result from the uncontrolled replication of its invention could potentially cause all Canadian canola farmers to lose their right to save and replant seed. “It can never be said with certainty that Monsanto’s gene will not soon be present on any canola field in western Canada. Accordingly, no farmer who saves and re-uses his seeds can be sure the Monsanto gene is not present in his seed supply.” Zakreski suggests: “Perhaps this is a benefit that Monsanto hoped to achieve by releasing their product into the environment without any control.” [Federal Court of Canada, 6/22/2000, pp. 39-41 pdf file; Star Phoenix (Saskatoon), 6/22/2000] As evidence that Monsanto failed to control the spread of its invention, Schmeiser spends several hours showing the courtroom pictures he took in the vicinity where he lives of volunteer Roundup-resistant canola plants growing in ditches, flower beds, cemeteries, and roadways. He explains how he sprayed the plants with Roundup and then returned to see if they had survived. [Star Phoenix (Saskatoon), 6/14/2000]
Defense Argument--Monsanto's patent is invalid; Monsanto's intellectual rights are protected under the Plant Breeders' Rights Act - Zakreski argues that a gene is “not the proper subject matter for a patent” and therefore the patent “should be declared invalid.” In support of this claim, he cites a federal appeals court’s 1998 decision in the case Harvard College v. Canada (Commissioner of Patents). In that case, the judges ruled that “A complex life form does not fit within the current parameters of the Patent Act… .” Zakreski further argues that there already is legislation—the Plant Breeders’ Rights Act—that protects the intellectual property rights of those who develop new plant varieties. He notes that unlike the Patent Act, the Plant Breeders’ Rights Act explicitly preserves farmers’ rights to save and re-plant their seed. [Federal Court of Canada, 6/22/2000, pp. 43 pdf file]

Entity Tags: Percy Schmeiser, Monsanto, Terry Zakreski, Rene Van Acker

Timeline Tags: Seeds

Percy Schmeiser later claims that Morris Hofmann, the Humboldt Flour Mills employee who retrieved a sample of Schmeiser’s 1998 seed for Monsanto (see Between April 24 and April 28, 1998), admits he lied in court. “He apologized to me for lying about supplying Monsanto with a sample of clean Roundup Ready Canola seed for use in court. He told me that Monsanto had taken him on trips, to lunch and given him free products to use on his farm.” [Crop Choice, 5/24/2002]

Entity Tags: Percy Schmeiser, Morris Hofmann, Monsanto

Timeline Tags: Seeds

Canadian Federal Judge Andrew MacKay rules in favor of Monsanto in its case against Canadian canola farmer Percy Schmeiser (see June 5, 2000-June 21, 2000). [Star Phoenix (Saskatoon), 3/30/2001]
Judge MacKay decides the following: -
bullet That all test results submitted to the court as evidence by Monsanto was admissible and worthy of consideration by the court. The test results had indicated that a high percentage (in most cases, more than 90 percent) of the seed present in several samples presumably taken from Schmeiser’s canola fields contained Monsanto’s patented Roundup Ready gene. Schmeiser’s lawyer had argued (see June 5, 2000-June 21, 2000) that the samples had been taken illegally and were invalid because they were not obtained, stored, or tested in a scientific manner or by independent parties. Schmeiser’s lawyer also raised questions about the authenticity of the samples noting multiple contradictions in the observed properties of the samples as they changed possession from one person to another. The judge dismissed all of these concerns insisting that certain “conclusions of fact” could nonetheless be “drawn from evidence of the various tests.” [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 34 pdf file; Star Phoenix (Saskatoon), 3/30/2001]
bullet That based on expert testimony and results from the tests on samples taken from Schmeiser’s property, “none of the suggested possible sources of contamination of Schmeiser’s crop was the basis for the substantial level of Roundup Ready canola growing in field number 2 in 1997.” (“Field number 2” is the field where Schmeiser discovered the presence of Roundup Canola in 1997 (see Summer 1997)) [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 51 pdf file]
bullet That “the source of the Roundup-resistant canola in the defendants’ 1997 crop is really not significant for the resolution of the issue of infringement which relates to the 1998 crop.” [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 51 pdf file]
bullet That Schmeiser infringed on Monsanto’s patent when he planted seed that he “knew or ought to have known” contained Monsanto’s patented gene. Judge MacKay disagrees with the defense’s argument that in order to have used the essence of Monsanto’s patent, Schmeiser would have had to have applied Roundup to his crop. According to MacKay, the acts of replanting and selling the seed in and of themselves constituted use of the patent’s essence. “Growth of the seed, reproducing the patented gene and cell, and sale of the harvested crop constitutes taking the essence of the plaintiffs’ invention, using it, without permission.” [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 51-53 pdf file; Star Phoenix (Saskatoon), 3/30/2001]
bullet That the law of admixture and the precedent set by “stray bull” cases do not apply to this case. What distinguishes this case from cases where admixture is relevant, says MacKay, is that “Monsanto does have ownership in its patented gene and cell and pursuant to the [Patent] Act has the exclusive use of its invention.” [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 55-56 pdf file]
bullet That Monsanto’s patent is valid. MacKay rejects Zakreski’s argument that the Harvard Mouse case relates to this case in the way he described. Rather according to MacKay, while that case concerned the patent on an organism, this case concerns a gene, the process for its insertion, and the cell derived from that process. As such, the Harvard Mouse case “implicitly support[s] the grant of the patent to Monsanto.” [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 40 pdf file]
bullet That Monsanto’s patent rights on its Roundup-resistant gene persist even after it has inserted itself into a plant owned by someone else. Schmeiser’s lawyer had argued (see June 5, 2000-June 21, 2000) that Monsanto’s patent confers only intellectual property rights, not actual property ownership rights, of the gene to the company and that therefore the insertion of Monsanto’s patented gene into a plant owned by someone else does not make that plant or its offspring property of Monsanto. While Judge MacKay agrees with the defense that the property ownership rights over a plant would not change in such a case, MacKay says that the interest of the person who owns that plant would nonetheless be subject to Monsanto’s patent rights. “Thus,” writes Judge MacKay, “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.” [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 40-41 pdf file; Star Phoenix (Saskatoon), 3/30/2001; Natural Life, 5/2001]
bullet That Monsanto did not implicitly waive its patent rights on the Roundup Ready gene because of any alleged failure to control the spread of its gene, as the defendant argued (see June 5, 2000-June 21, 2000). According to Judge MacKay, Monsanto has taken adequate steps to control the spread of its product. He cites Monsanto’s efforts to limit the use of the invention to only those plots of land farmed by licensed farmers for which the technology use fee has been paid; the company’s efforts to enforce the terms of its Technology Use Agreement; and the company’s efforts to remove plants that have invaded the properties of other farmers. MacKay makes little of the several photographs that Schmeiser had taken of Roundup-resistant Canola volunteers that he discovered scattered though out his community. [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 40-44 pdf file]
bullet To issue an injunction barring Schmeiser from planting “any seed saved from plants which are known or ought to be known to be Roundup tolerant, and from selling or otherwise depriving the plaintiffs of their exclusive right to use plants which the defendants know or ought to know are Roundup tolerant, or using the seeds from such plants.” [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 55 pdf file]
bullet That Schmeiser’s unauthorized use of Monsanto’s patented gene entitles the company to the profit realized by Schmeiser as a result of the sale of his 1998 crop, plus interest. However Judge MacKay believes that Monsanto has overstated Schmeiser’s profit because it did not factor in his labor as an expense. MacKay also disagrees with the plaintiff that exemplary damages are warranted in this case. MacKay gives Schmeiser and Monsanto three weeks to agree on the value of Schmeiser’s 1998 profit. If they cannot come to an agreement by then, Schmeiser is to pay Monsanto the sum of $15,450 CAD, or $15 CAD/acre planted and harvested in 1998. [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 56-60 pdf file]

Entity Tags: Monsanto, Percy Schmeiser, Andrew MacKay

Timeline Tags: Seeds

(Show related quotes)

Canadian farmer Percy Schmeiser is ordered to pay $19,832 CAD in damages to Monsanto for having planted and harvested canola in 1998 that he “knew or ought to have known” contained Monsanto’s patent-protected Roundup-resistant gene. Several weeks earlier, a Canadian federal court ruled that Monsanto was entitled to the profits plus interest from Schmeiser’s 1998 canola crop (see March 29, 2001). [Star Phoenix (Saskatoon), 5/24/2001]

Entity Tags: Percy Schmeiser, Monsanto

Timeline Tags: Seeds

Percy Schmeiser files an appeal against Judge Andrew MacKay’s ruling (see March 29, 2001) that he infringed on Monsanto’s patent for Roundup Ready Canola when he planted seed in 1998 that he “knew or ought to have known” was resistant to Roundup. In his grounds for appeal, attorney Terry Zakreski makes 17 points (see May 15-16, 2002). [Star Phoenix (Saskatoon), 6/21/2001]

Entity Tags: Terry Zakreski, Percy Schmeiser

Timeline Tags: Seeds

Federal Court of Canada Justice Andrew MacKay orders Percy Schmeiser to pay Monsanto $153,000 CAD in order to compensate the company for a portion of its legal costs. Monsanto sued Schmeiser in 2000 (see June 5, 2000-June 21, 2000) for illegally planting and harvesting canola in 1998 that he “knew or ought to have known” contained Monsanto’s patent-protected Roundup-resistant gene. This sum of money is in addition to the $19,832 CAD that Schmeiser has already been ordered to pay the company (see May 23, 2001). [Star Phoenix (Saskatoon), 4/29/2002]

Entity Tags: Monsanto, Percy Schmeiser, Terry Zakreski

Timeline Tags: Seeds

Percy Schmeiser’s lawyer, Terry Zakreski, in his argument before the Canadian Federal Court of Appeals, cites 17 grounds for the appeal of Judge MacKay’s March 2001 decision (see March 29, 2001) against Schmeiser. The judge had ruled that Schmeiser had infringed on Monsanto’s patent when he planted canola seed in 1998 that he “knew or ought to have known” was resistant to Roundup. [Star Phoenix (Saskatoon), 5/16/2002; Star Phoenix (Saskatoon), 5/17/2002; Star Phoenix (Saskatoon), 5/17/2002; Star Phoenix (Saskatoon), 5/17/2002] Monsanto lawyer Roger Hughes is also present for a cross-appeal to contest MacKay’s decision to award the company only $19,832 CAD—the figure MacKay determined was Schmeiser’s profit from the sale of his 1998 crop. According to Monsanto’s calculations, Schmeiser’s profits were $105,935 CAD, or 74 percent of his $142,625 CAD gross. [Star Phoenix (Saskatoon), 5/17/2002]
Zakreski's Grounds for Appeal - Some of the issues that Zakreski contends MacKay made erroneous judgments about include the following (As summarized in the 12/31/2001 Court of Appeals Submission):
bullet Interpreting the Patent Act and the Patent so as to deprive farmers the ownership of canola plants and seeds containing the patented gene. Zakreski says that MacKay was wrong to conclude that the Patent Act gives Monsanto “ownership in its patented gene and cell” because the act only grants it the right to make, construct, and use the patented gene and sell it to others to be used. It does not grant ownership. Zakreski argues that according to common law, ownership rights come from possession and control of, or intent to control, a property; and Schmeiser had both possession and control. Zakreski says MacKay’s decision permits Monsanto “to invade the common law property rights of [a farmer] in order to assert its patent rights” merely because its “patented gene happens to be in a seed or plant belonging to a farmer.” [Memorandum of Fact and Law of the Appellants, Percy Schmeiser and Schmeiser Enterprises Ltd. Percy Schmeiser v. Monsanto Canada Inc., 12/3/2001, pp. 12-14 pdf file]
bullet Interpreting the Patent Act and the Patent so as to deprive farmers of there vested right to being able to save and re-use their own canola seed that may contain the patented gene. Zakreski says that the implication of MacKay’s interpretation “is that no farmer who becomes aware, or ought to be aware, that his canola contains the gene patented by [Monsanto] will have the right to save and reuse his canola seed.” [Memorandum of Fact and Law of the Appellants, Percy Schmeiser and Schmeiser Enterprises Ltd. Percy Schmeiser v. Monsanto Canada Inc., 12/3/2001, pp. 13 pdf file]
bullet Finding that it is not necessary that a farmer take advantage of the patented gene by in-crop spraying with a glyphosate based herbicide such as Roundup in order to infringe the Patent. Zakreski says that MacKay was wrong to conclude that Schmeiser had used the patent by merely growing plants containing Monsanto’s gene. He argues that the utility of the patented gene can only be exploited when the crop is sprayed with Roundup, which Schmeiser did not do. The gene, notes Zakreski, is not used at any other time and is certainly not used when the plant is merely growing because the patented gene does not help the plant grow in any way. He cites a case in British Admiralty law, where a sea captain was accused of patent infringement because he had a patent-protected pump aboard his ship. The court found there was no infringement because the pump was not used . [Star Phoenix (Saskatoon), 6/21/2001; Memorandum of Fact and Law of the Appellants, Percy Schmeiser and Schmeiser Enterprises Ltd. Percy Schmeiser v. Monsanto Canada Inc., 12/3/2001, pp. 21-28 pdf file]
bullet Determining that the Respondents had not waived their patent rights by the “unconfined release” of their invention. Zakreski says that while MacKay apparently did not disagree that the “unconfined release” of an invention can result in the waiver of a patentholder’s rights, the judge believed that Monsanto took adequate steps to control the spread of its patented gene. Zakreski says this is not true. He says that several of the steps undertaken by Monsanto cited by MacKay were responses prompted by the fact that the gene had already spread. Thus Monsanto’s actions are evidence that Monsanto had “already lost control of their own product.” Zakreski also notes that where Monsanto had an opportunity to reduce the risk of gene drift, it chose not to. For example, (1) Monsanto’s Technology Use Agreement “places no restrictions on growers aimed at reducing (much less preventing) the escape of genetically modified canola,” does not require seed segregation, does not require a buffer zone, and did not require methods of transport that would have prevented seed loss; and (2) at Monsanto’s informational meetings, which all new Roundup Ready Canola growers are required to attend, farmers were not warned about cross-pollination, not instructed to maintain a buffer strip, not told to warn neighbors who grow non-transgenic canola, not told to segregate seed, and not told to prevent seed loss during transport. [Star Phoenix (Saskatoon), 6/21/2001; Memorandum of Fact and Law of the Appellants, Percy Schmeiser and Schmeiser Enterprises Ltd. Percy Schmeiser v. Monsanto Canada Inc., 12/3/2001, pp. 29-35 pdf file]
bullet Finding that there was “no evidence” that the canola seed used by the appellants to see the 1997 canola crop, included genetically modified seed and pollen carried into field #6 from a neighbor’s field. Zakreski says that this statement is false because it ignores Schmeiser’s testimony that his 1997 canola crop “came from field number 1 and field number 6.” [Memorandum of Fact and Law of the Appellants, Percy Schmeiser and Schmeiser Enterprises Ltd. Percy Schmeiser v. Monsanto Canada Inc., 12/3/2001, pp. 35-37 pdf file]
bullet Giving undue weight and significance to the internal sampling and testing done by the Respondents. As he did in his original closing argument, Zakreski argues that the test results were invalid because the samples were not obtained, stored, or tested in a scientific manner or by independent parties. He also notes that there were multiple contradictions in the observed properties of the samples as they changed possession from one person to another, suggesting that the seed that was ultimately tested may not have actually been seed from Schmeiser’s farm. [Memorandum of Fact and Law of the Appellants, Percy Schmeiser and Schmeiser Enterprises Ltd. Percy Schmeiser v. Monsanto Canada Inc., 12/3/2001, pp. 37-41 pdf file]
bullet Determining that the Respondents were entitled to the profits made by Schmeiser Enterprises Ltd. for its entire 1998 canola crop. Zakreski notes that (1) Monsanto’s patent grants it exclusive rights to sell its invention “to others to be used”; and (2) that Schmeiser sold his canola crop “to a grain elevator to be sent to a commercial crushing plant to make the canola seed into canola oil.” Thus, “the presence or absence of Monsanto’s patented gene added no value whatsoever to the canola seed which was, clearly, the Appellants’ property.” The judge’s ruling to award 100 percent of Schmeiser’s profit to Monsanto was erroneous, Zakreski argues, since Schmeiser “realized no profit or advantage from the presence of the patented gene.” [Memorandum of Fact and Law of the Appellants, Percy Schmeiser and Schmeiser Enterprises Ltd. Percy Schmeiser v. Monsanto Canada Inc., 12/3/2001, pp. 43 pdf file]
bullet Issuing an injunction that would impair the Appellants from engaging in the traditional farming practice of saving and re-using canola seed during the term of the Patent. Zakreski says that the injunction would make it illegal for Schmeiser to farm because unwanted Roundup Ready Canola volunteers continue to grow in his fields (see Spring 1999), even though he planted his fields in 1999 with entirely new seed (see Summer 1999). [Memorandum of Fact and Law of the Appellants, Percy Schmeiser and Schmeiser Enterprises Ltd. Percy Schmeiser v. Monsanto Canada Inc., 12/3/2001, pp. 44 pdf file]

Entity Tags: Monsanto, Terry Zakreski, Percy Schmeiser

Timeline Tags: Seeds

After Percy Schmeiser finds volunteer Roundup Ready Canola plants growing in a 50-acre parcel of his farm that was chemically fallowed, he calls Monsanto and asks them to remove the plants. In 2000, a federal court issued an injunction barring him from growing any plants containing the company’s patented genes and cells (see March 29, 2001). A team of Monsanto investigators shows up and offers to remove the plants. But before they do so, they ask him to sign a legal release, prohibiting him from speaking publicly about the settlement terms and releasing the company of all liability. Schmeiser refuses. “I flatly refused to sign any release that would take my freedom of speech or my rights away,” he says. “They must think I’m absolutely crazy I would ever sign my rights away.” According to the company’s inspectors, the plants appear to have grown in a uniform pattern inconsistent with pollen flow. They also say that it is not normal for canola plants to flower in late September. In a letter dated September 30, Schmeiser responds that the dispersal pattern of the plants are not uniform and are thickest by the road, which is what one would expect if they germinated from seed blown of trucks or from a neighboring farm. He also notes that canola seeds may germinate at any point during the year, if conditions are right. With neither side willing to give in to the other’s demands, Schmeiser removes the plants himself on October 21. Monsanto spokesperson Trish Jordan insists the company is under no legal obligation to remove plants that show up in fields uninvited. [Western Producer (Saskatoon), 10/26/2005]

Entity Tags: Monsanto, Percy Schmeiser, Trish Jordan

Timeline Tags: Seeds

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