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Seeds

Monsanto Company v. Percy Schmeiser

Project: Genetic Engineering and the Privatization of Seeds
Open-Content project managed by Derek, mtuck

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Monsanto files a patent application in Canada for a technology that makes plants resistant to glyphosate herbicides such as Monsanto’s Roundup. The patent would apply to the genes and cells containing the DNA that makes the plant glyphosate-resistant; it would not apply to the plant itself. [Canadian Patents Database, 2/23/1993; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 8 pdf file]

Entity Tags: Monsanto

Category Tags: Biotech patents, Monsanto, Monsanto v. Schmeiser

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

Category Tags: Biotech patents, Monsanto, Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser

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

Category Tags: Canola, Monsanto, Monsanto v. Schmeiser

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

Category Tags: Farmers' rights, Monsanto, Monsanto v. Schmeiser, Coercive tactics

To enforce its “Technology Use Agreement” (see 1996), Monsanto sends detectives into farming communities to ensure that all fields planted with its patented seeds have been paid for. Farmers call them the “Monsanto police.” In the US, Monsanto has a contract with Pinkerton Security and Consulting. In Canada, the company uses Robinson Investigation Canada Ltd., which employs a team of former Royal Canadian Mounted Police. Monsanto also encourages farmers to use a toll-free “tip line” to blow the whistle on noncompliant neighbors. According to one farmer, Monsanto promises to reward snitchers with a leather jacket, an allegation that Monsanto denies. [Washington Post, 2/3/1999; Canadian Business, 10/8/1999] Another tactic employed by the company is to place radio ads broadcasting the names of growers caught illegally planting Monsanto’s seeds. [Washington Post, 2/3/1999] Monsanto threatens legal action against any farmer who it believes has violated the agreement. Suing one’s own customers “is a little touchy,” Karen Marshall, a Monsanto spokeswoman, concedes, adding that after spending so much money on research, Monsanto doesn’t want “to give the technology away.” [Washington Post, 2/3/1999] Craig Evans, the head of Monsanto’s Canadian biotechnology operation in Winnipeg, says: “At the end of the day if we don’t enforce our patent rights, the potential for new technology to come forward to maintain the competitiveness of the industry could disappear, because if you can’t get the return, then you’re going to take your technology somewhere else. We’re just trying to be fair. All I’m trying to do is fulfill the promise of the growers who said, ‘Monsanto, I’m willing to pay you for your technology as long as everyone’s paying.’” [Washington Post, 2/3/1999] Critics say Monsanto’s actions are tearing away at the social fabric that has traditionally held farming communities together. [Washington Post, 2/3/1999; Star Phoenix (Saskatoon), 4/14/2005] “Farmers here are calling it a reign of terror,” according to canola farmer Percy Schmeiser. “Everyone’s looking at each other and asking, ‘Did my neighbor say something?’” [Washington Post, 2/3/1999] “Our rural communities are being turned into corporate police states and farmers are being turned into criminals,” Hope Shand, research director of Rural Advancement Foundation International, explains to the Washington Post in 1999. [Washington Post, 2/3/1999]

Entity Tags: Monsanto, Robinson Investigation Canada Ltd, Pinkerton Security and Consulting, Percy Schmeiser, Craig Evans, Karen Marshall, Hope Shand

Category Tags: Farmers' rights, Monsanto, Monsanto v. Schmeiser, Coercive tactics

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

Category Tags: Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser

Monsanto employee Rob Chomyn asks Gary Pappenpoot, the manager at Humboldt Flour Mills, if he would be willing to provide Monsanto with samples of seeds from farmers the company is investigating. Pappenpoot agrees. Humboldt Flour Mills inoculates seeds against diseases and insects. It does not clean seeds (i.e., remove the chaff). [Federal Court of Canada, 6/22/2000, pp. 18 pdf file]

Entity Tags: Humboldt Flour Mills, Gary Pappenpoot, Rob Chomyn

Category Tags: Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser

Before planting his 1998 crop, Percy Schmeiser brings approximately four tons of seed that came from the field (see Fall 1997) where patches of Roundup-resistant canola were discovered the year before (see Summer 1997) to Humboldt Flour Mills for inoculation against diseases and insects. According to Schmeiser, the seeds have not been cleaned and therefore are full of chaff. [Washington Post, 5/2/1999; Federal Court of Canada, 6/22/2000, pp. 7-8 pdf file; Crop Choice, 5/24/2002]

Entity Tags: Percy Schmeiser, Humboldt Flour Mills

Category Tags: Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser

Robert Chomyn, an employee of Monsanto, calls Percy Schmeiser and informs him that Monsanto investigators would like to visit his property and take plant samples to determine whether he is illegally growing the company’s Roundup Ready Canola. “We have heard a rumor that you are growing Roundup Ready Canola on your farm,” he says. Schmeiser refuses to give the company permission to go on his property. [Washington Post, 5/2/1999; Federal Court of Canada, 6/22/2000, pp. 21 pdf file; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 23 pdf file]

Entity Tags: Rob Chomyn, Monsanto, Percy Schmeiser

Category Tags: Monsanto v. Schmeiser

According to Canadian canola farmers Ed and Liz Kram of Raymore, Saskatchewan, a plane flies over their farm and spray-bombs three 160-acre fields with a herbicide destroying about half an acre in each field. They believe the herbicide was Roundup and that the bombing was done on behalf of Monsanto to determine if they were growing Roundup Ready Canola without having paid Monsanto’s $15 CAD/acre fee. The Krams believe Monsanto was involved because one of the company’s investigators visited them before the incident inquiring about their canola crop. A government representative who comes out to the farm to investigate the incident suggests the crop damage was caused by lightening strikes. “You think lightening struck in the center of all three of my canola quarters?” Kram asks. The representative then takes a sample to a lab. Testing indicates the presence of a chemical, but is presumably unable to determine what kind. Monsanto denies any connection to the incident. [Canadian Business, 10/8/1999]

Entity Tags: Ed Kram, Monsanto, Liz Kram

Category Tags: GM Contamination, Monsanto, Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser, Monsanto

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

Category Tags: Monsanto v. Schmeiser

After Percy Schmeiser’s Examination of Discovery, where he denies that he ever obtained and planted Monsanto’s Roundup Ready certified canola seeds, Monsanto drops its claim that Schmeiser “obtained canola seeds which are resistant to glyphosate from one or more persons licensed by… Monsanto Canada Inc.” Monsanto’s amended statement of claim alleges only that Schmeiser planted seed from his 1997 canola crop containing Monsanto’s patented Roundup-resistant genes and cells, and that in doing so, he infringed on the company’s patent. Therefore, the question of how Monsanto’s gene came to be present in Schmeiser’s fields is no longer of any concern to the company. Whether Schmeiser’s possession of the gene was a result of deliberate action or uninvited contamination has no bearing on the question of infringement, according to Monsanto. It asserts that the mere action of planting seeds containing Monsanto’s patented genes and cells—their presence intentional or not—infringed on the company’s patent. [Washington Post, 5/2/1999; Federal Court of Canada, 6/22/2000, pp. 14 pdf file]

Entity Tags: Percy Schmeiser, Monsanto

Category Tags: Monsanto v. Schmeiser

Ray Mowling, a vice president for Monsanto Canada in Mississauga, concedes to the Washington Post that some cross-pollination does occur between Monsanto’s genetically modified plants and other plants. Referring to Monsanto’s lawsuit against Percy Schmeiser, a canola farmer accused of illegally growing Monsanto’s Roundup Ready Canola, Mowling “acknowledges the awkwardness of prosecuting farmers who may be inadvertently growing Monsanto seed through cross-pollination or via innocent trades with patent-violating neighbors,” but explains that Monsanto believes that Schmeiser’s case is “critical” to win in order to protect its patent rights against the use of its seed by farmers who have not paid Monsanto’s technology use fees. [Washington Post, 2/3/1999]

Entity Tags: Monsanto, Ray Mowling, Percy Schmeiser

Category Tags: GM Contamination, Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser

Percy Schmeiser finds several Roundup Ready Canola volunteers growing in his fields. (Volunteers are plants that grow where they are not wanted.) He contacts Monsanto about the canola plants, but the company’s representatives do not come out to his farm to inspect them. [Star Phoenix (Saskatoon), 6/14/2000]

Entity Tags: Percy Schmeiser, Monsanto

Category Tags: GM Contamination, Monsanto v. Schmeiser, Monsanto, Canola

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

Category Tags: GM Contamination, Monsanto, Monsanto v. Schmeiser, Canola

Canadian farmer Louie Gerwing finds canola plants thriving in a fallow field he sprayed with herbicide. He brings a Monsanto-hired investigator to the property who determines it is Monsanto’s Roundup Ready Canola. The investigator documents the infestation on film and then removes the plants by hand. The field, which runs along a busy provincial grid road, contained plants as far as 1000 feet away from the road. It had previously been planted with barley, wheat, and peas. Gerwing speculates that Roundup Ready Canola seeds must have been blown off passing grain trucks during the winter and then distributed around his field by drifting snow. [Alberta Report, 9/6/1999; Star Phoenix (Saskatoon), 6/16/2000]

Entity Tags: Louie Gerwing, Monsanto

Category Tags: GM Contamination, Monsanto, Monsanto v. Schmeiser, Canola

In an interview with the Alberta Report, Craig Evans, general manager of biotechnology for Monsanto Canada, refuses to say whether or not Monsanto accepts the responsibility of removing Roundup Ready Canola plants that spread to fields where they are not wanted. “We have 55 representatives out there to help all growers with all weed control problems,” says Evans. “Covering costs depends on the situation. At the end of the day, I don’t want to say if we do or we don’t.” [Alberta Report, 9/6/1999]

Entity Tags: Monsanto, Craig Evans

Category Tags: Monsanto, GM Contamination, Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser

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

Category Tags: GM Contamination, Monsanto v. Schmeiser, Canola

Pierre Gaudet, owner of a 400-hectare organic soya farm and president of the Quebec Federation of Organic Producers, learns that four percent of his 60-ton crop contains genetically modified soya. His crop was apparently cross-pollinated by his neighbor’s fields. He loses $33,000 when he is forced to sell his contaminated crop on the conventional market, which pays only $190/ton compared to the $750/ton rate that is paid for organic soya. “There is no insurance for that. I can’t sue my neighbor—he followed all the rules,” Gaudet says. “All the companies tell us that cross-pollination [of soya] is impossible, so I didn’t take any special measures.” [Gazette (Montreal), 10/5/2002]

Entity Tags: Pierre Gaudet

Category Tags: GM Contamination, Monsanto v. Schmeiser, Soybeans

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

Category Tags: Monsanto, Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser

Dr. Ignacio Chapela, a microbial ecologist, and his assistant, David Quist, a graduate student at UC Berkeley, discover the presence of genetically modified (GM) genes in native Mexican maize growing in the remote hills of Oaxaca, Mexico. The contaminant genes contain DNA sequences from the cauliflower mosaic virus, which is often used as a promoter to “switch on” insecticidal or herbicidal properties in GM plants. Contamination is also found in samples from a government food store that purchases animal feed from the US. The Oaxaca region is considered to be the birthplace of maize and the world’s center of diversity for corn, “exactly the kind of repository of genetic variation that environmentalists and many scientists had hoped to protect from contamination,” the New York Times reports. Scientists worry that the genes could spread through the region’s corn population reducing its genetic diversity. Critics of genetically modified crops have long argued that the technology cannot be contained. According to Dr. Norman C. Ellstrand, evolutionary biologist at University of California at Riverside, the discovery “shows in today’s modern world how rapidly genetic material can move from one place to another.” The findings are not good news for the biotech industry which is currently lobbying Brazil, the European Union, and Mexico to lift their embargoes on genetically modified crops. [New York Times, 10/2/2001; Manchester Guardian Weekly, 12/12/2001; BBC, 3/13/2002] It is later learned that the contamination resulted from Oaxacan peasants planting kernels they purchased from a local feed store. Though there’s a moratorium on the growing of GM crops, there’s no such ban on animal feed containing GM seed. [Cox News, 10/2/2001]

Entity Tags: Bivings Group, Monsanto, David Quist, Ignacio Chapela, Ministry of the Environment and Natural Resources

Category Tags: GM Contamination, Mexico, Biodiversity, Corn, Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser, Monsanto

(Show related quotes)

Percy Schmeiser announces that he will appeal Federal Judge Andrew MacKay’s ruling (see March 29, 2001) that he infringed on Monsanto’s patent for Roundup Ready Canola . [Star Phoenix (Saskatoon), 5/25/2001; Star Phoenix (Saskatoon), 6/21/2001]

Entity Tags: Percy Schmeiser

Category Tags: Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser

Don Carlson, president of the Humboldt and District Marketing Club, contends in an op-ed piece published by the Saskatoon Star Phoenix that herbicide-tolerant crops, such as Roundup Ready Canola, have resulted in numerous benefits for farmers. He says these benefits include “reduced tillage, earlier seeding, lower fuel and chemical costs, less erosion and less salinity.” He says he and others felt compelled to write the op-ed in response to all the negative information about GM crops, which they blame on Monsanto’s lawsuit against farmer Percy Schmeiser. [Star Phoenix (Saskatoon), 6/22/2001]

Entity Tags: Percy Schmeiser, Monsanto, Don Carlson

Category Tags: Monsanto, Canola, Monsanto v. Schmeiser

Investigators with Robinson Security visit canola fields farmed by Carlyle Moritz to look for evidence that he is illegally growing Monsanto’s patented Roundup Ready Canola. They reportedly take samples from canola plants growing in a nearby right-of-way. Moritz, who works for Percy Schmeiser, rents the land from his mother. [Star Phoenix (Saskatoon), 7/20/2001]

Entity Tags: Monsanto, Robinson Investigation Canada Ltd, Carlyle Moritz

Category Tags: Monsanto, Monsanto v. Schmeiser

The Saskatoon Star Phoenix reports that Monsanto’s legal costs for suing Percy Schmeiser amount to $726,768.10 CAD. [Star Phoenix (Saskatoon), 7/24/2001] Reportedly, of that amount, $30,000 CAD was paid to Dr. Keith Downey, one of the scientists who testified against Schmeiser. [Institute of Science in Society, 9/2002] Schmeiser’s lawyer, Terry Zakreski, tells the newspaper that he believes Monsanto will attempt to seek about $220,000 CAD of that amount. [Star Phoenix (Saskatoon), 7/24/2001]

Entity Tags: Percy Schmeiser, Monsanto, Terry Zakreski, Keith Downey

Category Tags: Monsanto v. Schmeiser

Canadian farmer Percy Schmeiser tours Africa warning farmers not to grow GM crops and sharing with them his story about being sued by biotech giant Monsanto. According to Schmeiser, representatives of the company follow him to almost every meeting, sometimes several in a single day. At one meeting, a Monsanto representative demands that he be given equal time to speak. But the organizers of the meeting, according to Schmeiser, tell him, “Get lost! If you want to speak to a meeting, call your own.” [Alive, 2/2002; Institute of Science in Society, 9/2002] At one point during his trip, while in South Africa, Schmeiser talks to a group of large landowners. The next day, about 30 of them declare a non-GMO zone and cancel their orders for Monsanto’s GM soya. Schmeiser later recalls, “That got Monsanto against me.” Later, Schmeiser runs into Wally Green of Monsanto in Johannesburg after the two spoke to Parliament. Green was not happy. According to Schmeiser, Green tells him, “Nobody stands up to Monsanto. We are going to get you and destroy you. When you get back to Canada, we’ll get you.” [Institute of Science in Society, 9/2002]

Entity Tags: Wally Green, Percy Schmeiser, Monsanto

Category Tags: Monsanto, Monsanto v. Schmeiser, Resistance

A study conducted by three University of Manitoba biologists finds that contamination of Pedigreed canola seed with seeds containing transgenic genes is widespread. In the study, seed was collected from several pedigreed seed lots that were supposed to be free of genetically altered genes that make plants herbicide-resistant. The seeds were used to plant 33 fields, which were then sprayed with Roundup, Liberty, and the Smart-trait herbicide. After the herbicide application, only one field contained no survivors. Of the 27 seedlots, 14 had contamination levels exceeding 0.25 percent and therefore failed the 99.75 percent cultivar purity guideline for certified canola seed. For three of the seedlots, contamination levels were higher than 2.0 percent. “That means one wrong seed in 400, if a farmer is seeding between 100 and 120 seeds per square yard. That means you would have a Roundup-resistant plant every couple of square yards,” explains plant biologist Lyle Friesen. “In a less competitive crop where you can mix products like 2,4-D or MCPA, that becomes a real problem and the volunteers set seed and become a real problem for next year.” Friesen tells the Manitoba Co-operator that, as far as canola is concerned, the “genie may be out of the bottle.” [Manitoba Co-operator, 8/1/2002; Friesen, Nelson, and van Acker, 2003]

Entity Tags: Lyle Friesen, Rene Van Acker

Category Tags: GM Contamination, Studies-academic, Canola, Monsanto v. Schmeiser

Jorge Soberon, the executive secretary of Mexico’s biodiversity commission, announces that government scientists have confirmed that genetically modified (GM) corn is growing in Mexico. The finding supports what two US scientists reported several months earlier (see Late November 2001) in a highly controversial paper published in the journal Science. Calling it the “world’s worst case of contamination by GM material,” he says 95 percent of the sites sampled in Oaxaca and Puebla were found to have GM maize. Samples taken from these sites indicated a contamination level as high as 35 percent. [Daily Telegraph, 4/19/2002; Mother Jones, 7/9/2002]

Entity Tags: Jorge Soberon, Ministry of the Environment and Natural Resources

Category Tags: Mexico, Biodiversity, GM Contamination, Corn, Monsanto v. Schmeiser, Studies-government

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

Category Tags: Monsanto v. Schmeiser

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

Category Tags: Monsanto v. Schmeiser, Monsanto

An Australian study published in the Journal Science finds that wind or insects can carry canola pollen up to three kilometers (1.87 miles). In Canada, where the contamination of non-transgenic canola with genetically modified (GM) genes has become a serious problem, the present isolation distance of GM canola is a mere 100 meters. “The study underlines a clear risk,” the report says. “Once transgenes are introduced they can’t be completely controlled.” [National Post, 6/28/2002; Rieger et al., 7/4/2002; Manitoba Co-operator, 7/4/2002]

Entity Tags: Agriculture Canada and Agri-Food Canada, Agriculture Canada and Agri-Food Canada, Lyle Friesen

Category Tags: GM Contamination, Studies-academic, Monsanto v. Schmeiser, Canola

Agriculture Canada publishes a study on the contamination of conventional crops with proprietary genetically modified genes. The study says that scientists in Saskatoon tested 70 certified canola seed lot samples for the presence of genetically modified genes and found that almost half were contaminated with Monsanto’s Roundup Ready gene and 37 percent with Pioneer Hi-Bred’s Liberty Link. Fifty-nine percent contained both. The study warns that “unless canola pedigree seed growers take extra care to control canola volunteers in the years between canola pedigree production, such volunteers could raise the presence of foreign genes to unacceptable levels.” [Manitoba Co-operator, 7/4/2002; Natural Life, 10/2002]

Entity Tags: Agriculture Canada and Agri-Food Canada

Category Tags: GM Contamination, Studies-government, Canola, Monsanto v. Schmeiser

A Canadian Federal Appeals Court upholds Judge Andrew MacKay’s 2001 ruling that Percy Schmeiser 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. The three-judge panel dismisses 16 of Schmeiser’s 17 grounds of appeal in the case. The one point they accept is that MacKay erred when he stated that there was “no evidence” that the canola seed Schmeiser used in his 1997 canola crop included genetically modified seed and pollen carried into field #6 from a neighbor’s field. However this judgment is inconsequential since the judges agree with MacKay that the question of how Monsanto’s gene came to be present in Schmeiser’s 1998 crop is not relevant to the issue of infringement. The court also concurs with MacKay that Schmeiser infringed on the patent even though he did not use Roundup on his 1998 crop. The judges agree that the mere presence of the gene in Schmeiser’s crop was in and of itself an infringement. Additionally, they uphold MacKay’s decision to admit and consider test results indicating the presence of Monsanto’s patented gene in samples taken from Schmeiser’s 1997 and 1998 crop. Schmeiser’s lawyer had argued that the results were invalid because the samples were not obtained, stored, or tested in a scientific manner or by independent parties. He had also raised several questions that challenged the authenticity of the samples. Finally, the judges say in their decision that the amount awarded to Monsanto by MacKay was an accurate accounting of Schmeiser’s profit from the sale of his 1998 crop, rejecting Monsanto’s bid to increase the award to $105,935 CAD. [Percy Schmeiser v. Monsanto Canada Inc., 9/4/2002; Star Phoenix (Saskatoon), 9/6/2002] Upon learning of the appellate court’s decision, Percy Schmeiser says he will try to have his case heard before the Supreme Court of Canada. [Canadian Press, 9/6/2002; Star Phoenix (Saskatoon), 9/7/2002]

Entity Tags: Percy Schmeiser, Monsanto

Category Tags: Monsanto v. Schmeiser

Canada’s Supreme Court agrees to hear Percy Schmeiser’s appeal of a 2002 appellate court decision (see September 6, 2002) that he infringed on Monsanto’s rights as a patentholder when he planted and harvested canola in 1998 that he “knew or ought to have known” contained the company’s Roundup-resistant gene. [Canadian Press, 5/8/2003; Star Phoenix (Saskatoon), 5/9/2003]

Entity Tags: Percy Schmeiser, Monsanto

Category Tags: Monsanto v. Schmeiser

Canada’s Supreme Court hears the case of Percy Schmeiser v. Monsanto. Schmeiser is appealing a lower court’s decision that he infringed on Monsanto’s patent when he planted canola seed in 1998 that he “knew, or ought to have known” was from glyphosate-resistant plants. Intervening on Schmeiser’s behalf are a consortium of six non-government organizations (Council of Canadians; Action Group on Erosion, Technology, and Concentration; Sierra Club; National Farmers Union; Research Foundation for Science, Technology, and Ecology; and the International Center for Technology Assessment) and the Ontario attorney general. The Ontario government is backing Schmeiser because it fears that a decision upholding the lower court’s ruling would encourage more gene patents and increase healthcare costs. Monsanto’s lawyers also presenting arguments before the court. In addition to defending the lower courts’ ruling that Schmeiser infringed on the company’s patent, the lawyers are cross-appealing the decision that the farmer’s profits in 1998 (awarded to Monsanto) only amounted to $19,832 CAD. Monsanto has calculated Schmeiser’s profit to be $105,000 CAD. Monsanto’s interveners include the Canola Council of Canada, BIOTECanada, and the Canadian Seed Trade Association. [BC Politics, 2/2/2004]
Schmeiser's Arguments -
bullet Schmeiser’s lawyer, Terry Zakreski, challenges the validity of Monsanto’s patent arguing that the patent contradicts the Harvard College v. Canada Supreme Court decision that higher-life forms cannot be patented. He explains that in claiming exclusive rights to glyphosate-resistant plant genes and cells, Monsanto is in effect claiming patentholder rights to any plants and seeds containing those genes and cells, which as the Supreme Court has already decided, is not legal. He argues that Monsanto should have instead chosen to protect its intellectual property rights under the Plant Breeder’s Rights Act, which was designed to protect the rights of seed developers. [Associated Press, 1/20/2004; BC Politics, 2/2/2004]
bullet Zakreski also argues that extending Monsanto’s patentholder rights to second-generation roundup-resistant seeds makes it illegal for farmer’s to save and share seeds—the 12 thousand year old practice responsible for creating domesticated crops. [Vancouver Sun, 1/20/2004]
bullet Even if the patent is ruled valid, according to Zakreski, Monsanto implicitly waived its patentholder rights when it failed to control the spread of its invention after releasing it unconfined into the environment. [BC Politics, 2/2/2004]
bullet Zakreski also argues that even if the court upholds the validity of Monsanto’s patent, Schmeiser did not violate the patent, because he never exploited its utility—the resistance it provides against glyphosate. The only way to use the patent, he says, is to spray Monsanto Roundup Ready Canola with Roundup, which Schmeiser did not do. [BC Politics, 2/2/2004]
bullet Zakreski notes an inherent contradiction in the claim that Monsanto is entitled to all profits resulting from the sale of seed containing the patented gene. Zakreski offers the hypothetical example of a farmer whose canola is infested with two different genes, each patented by a different company. Would each of the patentholders be entitled to the full profit? Would the farmer be required to pay each of them 100 percent, in effect being forced to pay out twice the profit from his crop? [BC Politics, 2/2/2004]
Monsanto's argument -
bullet Monsanto’s lawyers reject Schmeiser’s position that a farmer’s right to save seed overrides the company’s patent rights. In order for them to recover research and development costs they must charge farmers annually for use of the seed containing their patented gene, they argue. [Vancouver Sun, 1/20/2004; Associated Press, 1/20/2004]
bullet The company’s lawyers also insist that the Harvard College v. Canada decision does not apply to this case. Its patent is not on the entire plant, but rather just one of the plant’s ingredients. He compares the company’s gene to a special patented steel that is used for an automobile where the inventor’s rights extend only to the steel, not the entire car. The judges interrupt Monsanto’s presentation on several occasions challenging the lawyer’s steel analogy and asking Monsanto’s lawyers where Monsanto’s patent rights would end since plants have the ability to reproduce themselves and hence the inventions contained within them.
bullet Lawyers for Monsanto’s interveners said that invalidating the company’s patent would harm Canada’s economy and undermine its patent system. “Patents create a climate that favors new research,” argues A. David Morrow, a lawyer for the Canadian Seed Trade Association. [Associated Press, 1/20/2004]
bullet Biotech Canada’s lawyer, Anthony Creber, similarly states, “I’m nervous that if you don’t give (patent protection) for seeds and cells, you will have a hollow Patent Act with severe economic consequences.” [Star Phoenix (Saskatoon), 1/21/2004]
bullet Mona Brown, a lawyer with the Canadian Canola Growers Association, tells the judges that the “patent makes us more profitable and better farmers.” [Associated Press, 1/20/2004]

Entity Tags: International Center for Technology Assessment, Research Foundation for Science, Technology and Ecology, National Farmers Union, Canola Council of Canada, BIOTECanada, Canadian Seed Trade Association, Action Group on Erosion, Technology, and Concentration, Sierra Club, Monsanto, Percy Schmeiser, Council of Canadians

Category Tags: Monsanto v. Schmeiser

In a split 5 to 4 decision, the Supreme Court of Canada rules that Percy Schmeiser violated Monsanto’s patent when he grew canola in 1998 that contained the company’s patented Roundup Ready gene. [Washington Post, 5/22/2004; Vancouver Sun, 5/22/2004; New York Times, 5/22/2004]
Decision - Schmeiser’s lawyer, Terry Zakreski, argued that the protection of Monsanto’s patented genes and cells necessarily extended to restricting the use of any plants and seeds containing them. Since this in effect means that Monsanto is claiming patentholder’s rights for the whole plant, the court must rule, in light of its 2002 Harvard College v. Canada decision that higher-life forms cannot be patented, that the company’s patent must be invalid. However, the majority rejects Zakreski’s argument and affirms the validity of Monsanto’s patent. The majority says the “Harvard Mouse” case does not support Schmeiser’s argument because, while Harvard had sought to patent an actual mouse, Monsanto’s patent is limited to certain genes and cells. Furthermore, Harvard did acquire patents on certain parts of the mouse, a plasmid and a somatic cell culture, and therefore the “Harvard Mouse” case supports Monsanto case, not Schmeiser’s. [Percy Schmeiser v. Monsanto Canada Inc., 5/21/2004, pp. 8] The majority also rejects Schmeiser’s defense that he did not use Monsanto’s patented genes. While sidestepping the issue of whether or not it would be necessary to spray Roundup on the plants in order to exploit Monsanto’s patented genes and cells, the majority says that his 1998 canola crop provided him with “stand-by” utility, which a previous court decision determined constituted “use.” In possessing and growing the crop, the majority argues, Schmeiser had reserved the option to spray it with Roundup, should the need arise, or sell it to make a profit. The majority thus holds that Schmeiser infringed on the patent. [Percy Schmeiser v. Monsanto Canada Inc., 5/21/2004, pp. 11-13] It is important to note that the majority says this decision does not concern “the innocent discovery by farmers of ‘blow-by’ patented plants on their land or in their cultivated fields.” The majority makes it clear that they do not accept Schmeiser’s claim that his property was “contaminated” with Monsanto’s genes. [Percy Schmeiser v. Monsanto Canada Inc., 5/21/2004, pp. 5] For them it is accepted fact that (1) “tests revealed that 95 to 98 percent of his 1,0[3]0 acres of canola crop [in 1998] was made up of Roundup Ready plants” [Percy Schmeiser v. Monsanto Canada Inc., 5/21/2004, pp. 6] ; (2) “he sprayed Roundup to isolate the Roundup Ready plants he found on his land” [emphasis added]; (3) he “segregated the seeds”; and (4) “he ended up with 1030 acres of Roundup Ready Canola.” All of these statements are made as matters of accepted fact even though they were, in fact, all disputed by Schmeiser (see January 20, 2004). [Percy Schmeiser v. Monsanto Canada Inc., 5/21/2004, pp. 15] The court does however side with Schmeiser on the issue of compensation owed to Monsanto. “[Schmeiser’s and Schmeiser Enterprises’] profits were precisely what they would have been had they planted and harvested ordinary canola. They sold the Roundup Ready Canola they grew in 1998 for feed, and thus obtained no premium for the fact that it was Roundup Ready Canola. Nor did they gain any agricultural advantage from the herbicide resistant nature of the canola, since no finding was made that they sprayed with Roundup herbicide to reduce weeds. The appellants’ profits arose solely from qualities of their crop that cannot be attributed to the invention.” [Percy Schmeiser v. Monsanto Canada Inc., 5/21/2004, pp. 17]
Dissenting Opinion - The minority opinion disagrees that any of Monsanto’s rights as a patentholder extend to plants, seeds, and crops. It accepts that Monsanto’s patent claims for the genes and cells are valid, but says that none of the protections afforded by the patent extend “to the plant itself, a higher life form incapable of patent protection.” According to the minority, “In order to avoid the claim extending to the whole plant, the plant cell claim cannot extend past the point where the genetically modified cell begins to multiply and differentiate into plant tissues, at which point the claim would be for every cell in the plant, i.e., for the plant itself.” Consequently, only the original genes and cells produced by Monsanto in the lab and contained within the original seed are protected by the patent—the resulting plant, its seeds, and the plants that grow from those seeds, are not. “Therefore saving, planting, or selling seed from glyphosate-resistant plants does not constitute an infringing use,” the minority concludes. [Percy Schmeiser v. Monsanto Canada Inc., 5/21/2004, pp. 22]

Entity Tags: Monsanto, Percy Schmeiser

Category Tags: Monsanto v. Schmeiser, Court decisions, Farmers' rights

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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

Category Tags: Monsanto v. Schmeiser, GM Contamination, Canola

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