Monsanto Plant Patent Case Winds On 268
srw writes "A follow-up to a slashdot story from two years ago: The Supreme Court of Canada is willing to hear the case of Percy Schmeiser -- a Saskatchewan farmer accused of violating Monsanto's IP by growing their patented canola. This article contains more background."
Re:Obviously a frame-up (Score:5, Informative)
Instead, it seems if some disgruntled seed saleman is pissed that you didn't want to buy their patented seed, he can just plant some on your property, and sue you for the cost after the fact. Now that's insane.
Re:Obviously a frame-up (Score:5, Informative)
On the other hand, if the court rules for the farmer, what's to stop farmers from stealing small amounts of seed from a neighbor who bought the patented crop and growing it for enough years to have a full crop and then claiming that a bird pooped the seeds on their field. This would effectively destroy IP rights of all seed companies.
Honestly, I don't know what the correct decision here would be. Either result could have disasterous implications.
Re:Obviously a frame-up (Score:3, Informative)
Another, perhaps even more worrysome case.. (Score:5, Informative)
This is not the only case going on right now - check this one out:
[knoxnews.com]
Farmer sent to prison over cotton seed
I'm personally not against GM-plants because they can help reducing the enviromental load, but this kind stories are very scary. A typical farmer has similar chances as a snowball in hell in to win a case against a Megacorp like Monsanto...
V.
Monsanto = Scumbags (Score:4, Informative)
"They could not understand what was happening and told David Boylan,
a Murdoch manager sent by Fox to Florida, that a valid, well-sourced
news story was being stifled. Boylan's reply broke with all the traditions
of the Murdoch empire.
In a moment of insane candour, he told an unvarnished truth which should
be framed and stuck on the top of every television set.
"We paid $3 billion for these television stations," he snapped.
"We'll decide what the news is. NEWS IS WHAT WE SAY IT IS."
Potato: Patent Pending? (Score:3, Informative)
I recently read a book that discussed agri-genetic engineering, specifically potatoes, and Monsanto's extreme measures to enforce their IP protection on these genetically engineered products. The author bought, grew, and studied some of these specially engineered plants.
The book combines a history of the plant with a prime example of how biotechnology is changing our relationship to nature. As part of his research, Pollan visited the Monsanto company headquarters and planted some of their NewLeaf-brand potatoes in his garden--seeds that had been genetically engineered to produce their own insecticide. Though they worked as advertised, he made some startling discoveries, primarily that the NewLeaf plants themselves are registered as a pesticide by the EPA, and that federal law prohibits anyone from reaping more than one crop per seed packet. And in a interesting aside, he explains how a global desire for consistently perfect French fries contributes to both damaging monoculture and the genetic engineering necessary to support it. There are many parallels with genetic engineering of plants, and the irresponsible proliferation of antibiotics (and the diseases that become increasingly immune to them).
If interested: The book is called Botany of Desire, by Michael Pollan. The book discusses four or five influential plants that have 1) shaped our history of humans and 2) that we have significantly altered theirs. I believe the plants are: potatoes, tulips, apples, and [interestingly enough] marijuana.
-J. R. Rogivue
CBC links (Score:5, Informative)
Re:Go Europe! (Score:4, Informative)
EU does not have so clean hands after all. The European Directive 98/44/EC on the legal protection of biotechnological inventions [eu.int] is rather horrible and the majority of member states have actually refused to transpose [plooij.nl] it. Unfortunately the new member states from Central/Eastern Europe won't have the same luxury because they have to accept everything without furher conditions (with certain very limited exceptions). It's not going to be a good time to be a farmer in Poland or Hungary, I believe..
V.
Re:Obviously a frame-up (Score:5, Informative)
It's not quite that straight... Schmeisers story [tv.cbc.ca] (the court documents give both sides pretty completely) is that he was spraying weeds with Roundup(tm) when he noticed that some of the canola in the area (which would have normally been killed by the herbicide) had survived --Finding that to be a bit weird, he sprayed a larger area and found a large patch that seemed to be roundup-resistant.. This appeared to be pretty much the area closest to the road.
The next summer, the seeds from the quarter section that he had sprayed were used to plant at least one of his quarter sections. This is the crop that Monsanto now claims to own. Part of the problem, however, is that the genetically modified seed has also contaminated the rest of his seed. If Monsanto wins a permanent injunction against Schmeiser ever using their seeds again, he'll not only have to turn over the seeds and profits from the mostly-monsanto patch... He'll also have to turn over any seeds with any monsanto contamination -- effectively, this will mean that he will have to destroy a couple of generations worth of breeding experiments because almost all of his stock now has at least a bit of monsanto seed in it.
Monsanto's claim was originally that he arranged (barter or sale) to have a monsanto-licensed farmer give him some of their roundup-ready seed (in violation of contract). Schmeiser claimed that it had appeared on his land, and he had the right to do what he wanted to with his crop. The (lower) courts decided that it didn't matter how the seed had landed on his land.. Monsanto had a patent on the seed, and nobody not licensed by them was allowed to use seeds with those genetics.
This decision could be especially problematic for some farmers because Canola is pretty much a weed. All sorts of farmers anywhere downwind from someone using Monsanto canola is likely to have at least a small proportion of genetically contaminated seed -- they could then have Monsanto going after them, as well.
Re:Obviously a frame-up (Score:3, Informative)
My understanding of Monsanto seed is that they insert a "terminator gene" which makes any seed sterile. Hence, you cannot grow it for enough years to have a full crop. You have to buy their seed every year. Consequently, the seed is cheaper than normal...
On Monsanto: (Score:5, Informative)
Copied from e2, (idea) by vectormane, without permission. I hope he doesn't mind. I didn't want to link to e2 because it can't handle the load.
In other words, Monsanto is criminal, arguably evil, certainly negligent, and generally a bunch of right bastards. GM foods FUD notwithstanding, these guys are bad people.
Re:Obviously a frame-up (Score:3, Informative)
>saleman is pissed that you didn't want to buy
>their patented seed, he can just plant some on
>your property, and sue you for the cost after >the fact. Now that's insane.
It would be if the case you describe were judged to constitute patent infringement, but the Federal Court of Appeal has already ruled in this case that involuntary contamination does not constitute patent infringement. There is only patent infringement if the seeds were put there by the person accused of the infringement, and if that person had knowledge that the seeds were glyphosate resistant. See paragraphs 55-58 of the Federal Court of Appeal's
ruling [fct-cf.gc.ca]:
[55] Counsel for Mr. Schmeiser submitted that a finding for Monsanto in this case would be highly prejudicial to any farmer who does not wish to grow Roundup Ready Canola. That is because glyphosate resistant canola can appear in a field without having been planted there, but a farmer cannot detect it without spraying Roundup, thereby killing any conventional canola in the field.
[56] There is considerable force to the argument that it would be unfair to grant Monsanto a remedy for infringement where volunteer Roundup Ready Canola grows in a farmer's field but its resistance to glyphosate remains unknown, or if that characteristic becomes apparent but the seeds of the volunteer plants are not retained for cultivation. It is often said that intention is not material to a finding of infringement: H. Fox, The Canadian Law and Practice relating to Letters Patent for Inventions, 4th ed. (1969), at page 381; Computalog Ltd. v. Comtech Logging Ltd. (1992), 44 C.P.R. (3d) 77 (F.C.A.). That principle was developed in the context of patents for conventional inventions: see, for example, Stead v. Anderson (1847), 2 W.P.C. 156, Wright v. Hitchcock (1870), L.R. 5 Ex. 37, Young v. Rosenthal (1884), 1 R.P.C. 29 (Q.B.), Skelding v. Daly et al. (1941), 1 C.P.R. 266 (B.C.C.A.). Clearly, in most cases of patent infringement, to allow a defence of ignorance or lack of intention to infringe would destroy the efficacy of the patent, because the actual content of any particular patent is known to very few people.
[57] However, it seems to me arguable that the patented Monsanto gene falls into a novel category. It is a patented invention found within a living plant that may, without human intervention, produce progeny containing the same invention. It is undisputed that a plant containing the Monsanto gene may come fortuitously onto the property of a person who has no reason to be aware of the presence of the characteristic created by the patented gene. It is also reasonable to suppose that the person could become aware that the plant has that characteristic but may tolerate the continued presence of the plant without doing anything to cause or promote the propagation of the plant or its progeny (by saving and planting the seeds, for example). In my view, it is an open question whether Monsanto could, in such circumstances, obtain a remedy for infringement on the basis that the intention of the alleged infringer is irrelevant. However, that question does not need to be resolved in this case.
[58] In this case, Mr. Schmeiser cultivated glyphosate resistant canola plants. His 1998 canola crop was mostly glyphosate resistant, and it came from seed that Mr. Schmeiser had saved from his own fields and the adjacent road allowances in 1997. Although the Trial Judge did not find that Mr. Schmeiser played any part initially in causing those glyphosate resistant canola plants to grow in 1997, the Trial Judge found as a fact, on the basis of ample evidence, that Mr. Schmeiser knew or should have known that those plants were glyphosate resistant when he saved their seeds in 1997 and planted those seeds the following year. It was the cultivation, harvest and sale of the 1998 crop in those circumstances that made Mr. Schmeiser vulnerable to Monsanto's infringement claim.
Re:Another, perhaps even more worrysome case.. (Score:4, Informative)
Re:Why isn't this a slam dunk case? (Score:5, Informative)
It's not a case about accidental/natural seed contamination. That question has already been settled conclusively: natural/accidental seed contamination does not constitute patent infringement. End of that story. (this is covered in the http://decisions.fct-cf.gc.ca/fct/2002/2002fca309. htmlFederal Court of Appeal's ruling.) However, Percy Schmeiser is not arguing that the plants in question growing in his fields (in 1998) were an instance of accidental contamination. He is arguing that the came into his hands via accidental contamination (in 1997), but he does not dispute that once he discovered he had it growing on his property and had identified it as glyphosate resistant, seeds were harvested from it and used to plant his next year's crop. Note that the claim against him is "patent infringement" i.e. use of a patented invention without the patent-holder's permission. It is not "illicitly getting his hands on Monsanto's seed". There is no law against getting your hands on genetically modified canola seed. There is, however, a law against planting it and cultivating it unless you hold a patent to do so. Which is why he's lost the first two rounds of the case.
The following paragraphs from the first ruling [fct-cf.gc.ca] may be illuminating as to what Percy Schmeiser's position actually is:
[38] As we have noted Mr. Schmeiser testified that in 1997 he planted his canola crop with seed saved from 1996 which he believed came mainly from field number 1. Roundup-resistant canola was first noticed in his crop in 1997, when Mr. Schmeiser and his hired hand, Carlysle Moritz, hand-sprayed Roundup around the power poles and in ditches along the road bordering fields 1, 2, 3 and 4. These fields are adjacent to one another and are located along the east side of the main paved grid road that leads south to Bruno from these fields. This spraying was part of the regular farming practices of the defendants, to kill weeds and volunteer plants around power poles and in ditches. Several days after the spraying, Mr. Schmeiser noticed that a large portion of the plants earlier sprayed by hand had survived the spraying with the Roundup herbicide.
[39] In an attempt to determine why the plants had survived the herbicide spraying, Mr. Schmeiser conducted a test in field 2. Using his sprayer, he sprayed, with Roundup herbicide, a section of that field in a strip along the road. He made two passes with his sprayer set to spray 40 feet, the first weaving between and around the power poles, and the second beyond but adjacent to the first pass in the field, and parallel to the power poles. This was said by him to be some three to four acres in all, or "a good three acres". After some days, approximately 60% of the plants earlier sprayed had persisted and continued to grow. Mr. Schmeiser testified that these plants grew in clumps which were thickest near the road and began to thin as one moved farther into the field.
[40] Despite this rsult Mr. Schmeiser continued to work field 2, and, at harvest, Carlysle Moritz, on instruction from Mr. Schmeiser, swathed and combined field 2. He included swaths from the surviving canola seed along the roadside in the first load of seed in the combine which he emptied into an old Ford truck located in the field. That truck was covered with a tarp and later it was towed to one of Mr. Schmeiser's outbuildings at Bruno. In the spring of 1998 the seed from the old Ford truck was taken by Mr. Schmeiser in another truck to the Humboldt Flour Mill ("HFM") for treatment. After that, Mr. Schmeiser's testimony is that the treated seed was mixed with some bin-run seed and fertilizer and then used for planting his 1998 canola crop.
Re:Who's Monsanto? Who is telling the truth? (Score:3, Informative)
"I've changed the title, since this is really a separate thread and has been for a while. I thought it might be worth summarizing the current
state of the argument as I see it.
The case seems to me to raise two separate issues:
1. What legal rule was the judge trying to lay down. This seems to me quite unclear, since he appears to be simultaneously saying that
Schmeiser does and does not own the same crop. I think there is a possible intepretation that makes it a sensible rule, but I can't tell if that is the one he intended.
2. What actually happened:
Schmeiser's version, accepted by his supporters:
Schmeiser doesn't want roundup ready canola growing in his fields, doesn't normally use roundup on canola. RR canola showed up in his fields either because pollen blew into them from the fields of other farmers who used RR or because some seed spilled in the road next to his fields and sprouted and pollenized his canola.
This account appears unbelievable for two different reasons:
A. According to Monsanto's testing, the tested plants were over 90% RR, according to Schmeiser they were 60%. Either way, the idea that a field
of RR several miles away would provide 90%, or 60%, or 1% of the pollen floating around a 300 acre field of canola is implausible. The idea that
accidentally sprouting canola from seeds that happened to fall out in the road could provide 1% probably isn't absurd, at least for plants
close to the road, but it's hard to see how they could provide anything close to 60%, given that they are, again, competing with a solid mass of
hundreds of acres of canola that has been deliberately planted, presumably watered, etc.
It's worth noting that although the Monsanto testing was of plants right along the road (because they could get them without trespassing),
Schmeiser's own testing was not so limited--and he reported 60%.
So Schmeiser's account appears strikingly inconsistent with either side's claim about how much of the canola he was growing was RR. To
avoid that, you have to argue that the tiny fraction of RR explained on his account somehow rapidly out competed the ordinary canola. But since Schemeiser wasn't using roundup, and RR's only advantage, apparently, is superior resistence to roundup, it is hard to see how that could happen.
B. According to the testimony at trial, if I understand it correctly, Schmeiser (and his employee) took the following series of actions:
1. They sprayed part of a field of canola with roundup; 60% of the plants survived.
2. They took the seed from the surviving 60%, stored it, used it (along with enough other seed) to plant the whole area he was planting with
canola the next year.
That makes perfectly good sense if Schmeiser was deliberately trying to breed his own strain of RR. The only inconsistent element is that it would have made more sense for him not to mix the two seeds, but to use the RR seed for part of his area and the non RR for the rest. But it isn't clear that he didn't--"mix" may merely mean "use some of each."
And in any case, doing that would make it even more obvious what he was doing, whereas this way he could produce a high RR crop in one year,
repeat to get higher the next.
But it makes no sense at all if he objected to RR, as he claims he does.
If he doesn't want it, why does he deliberately use the seed that he knows is high RR--from the plants that didn't die when sprayed with
Roundup--instead of deliberately avoiding using that particular seed and planting his next year's crop with seed from other parts of his field?
Looking at both A and B, the obvious explanation is that Schmeiser is lying. Either he planted RR seed bought without license from a neighbor
who was growing it--presumably what Monsanto is trying to prevent--or he deliberately tried to breed his own RR canola, or both.
So far, nobody here has offered any other explanation of these facts, although that doesn't prove that no other explanation is possible. Nor
has anyone shown that I am misreading the reported facts of the case, although that too is possible.
--
David Friedman
www.daviddfriedman.com/"
Not exactly (Score:3, Informative)
Re:Obviously a frame-up (Score:3, Informative)
Under the status quo (i.e. the last ruling, by the Federal Court of Appeal) you are under no obligation to test your plants for the presence of any patented genes, and you can't be found in infringement of the patent unless you had performed some such test and the plants tested positive, but you took seed from them anyway and replanted it.
Of course, Percy Schmeiser's story is that he had in fact performed some such test, but went ahead anyway and took the seed from plants which tested positive for glyphosate-resistance, and planted it in his fields the following year. That's how he lost the appeal despite the Appeal Court's ruling. But you need not worry that farmers are in jeopardy of IP violations due to accidental spread of patented genes. That battle has already been won, in favour of the farmers. But it has no relevance whatsoever to the Percy Schmeiser case because Mr. Schmeiser claims that 1) his farming company planted the glyphosate-resistant plants growing in his fields in 1998; and 2) that the seed for these plants came from plants in his fields in 1997 which had been tested and found to be glyphosate-resistant.
He is not arguing that the plants growing in his fields in 1998 were a case of accidental contamination. He's claiming only that he originally got his hands on the seeds by taking advantage of some accidental contamination. He is arguing that he can do anything he likes with glyphosate-resistant plants he finds growing on his property, including harvesting the seed from them and planting it the following year. Possibly a reasonable point of view, but one with no basis whatsoever in Canadian law, which says that one may not grow a patented plant without getting a licence from the patent holder, and gives no exemption from patent laws just because the infringer owns the physical property in question. This may be why he's lost the first two legal rounds: he has not a legal leg to stand on.
Re:Canola by any other name (Score:1, Informative)
Re:Obviously a frame-up (Score:3, Informative)
The crop is designed to be unable to reproduce, so you have to keep buying seeds every year.
This is not true. Monsanto doesn't use these terminator genes, which is in a way unfortunate since if the plant were designed this way there wouldn't be a problem. This case was specifically about second or third generation Monsanto genes.
In fact, on one farm in Alberta there has been found a subsequent generation crop that has all three major brands of herbicide resistant gene.