"Alternative Nobel Prize" Awarded to Convicted Patent Infringer* Percy Schmeiser

Ronald Bailey | October 2, 2007

During the annual fall Nobel season, the Swedish Right Livelihood Foundation offers awards to "people of vision. People who have ideas and apply them in concrete initiatives for the public good." The Foundation announced among its other winners are Canadian farmers Percy and Louise Schmeiser. Why? As the Foundation explains:

With their fight against Monsanto's abusive marketing practices, Percy and Louise Schmeiser have given the world a wake-up call about the dangers to farmers and biodiversity everywhere from the growing dominance and market aggression of companies engaged in the genetic engineering of crops.

What was the fight allegedly about?

In 1998 Percy Schmeiser and his wife received a letter from the US agribusiness giant Monsanto claiming that they had used Monsanto seeds without a license in planting their 1997 crop. However, the Schmeisers had never bought Monsanto seed nor intended to have it on their land. It turned out that some Monsanto 'Round-up Ready' genetically modified canola (rape) seeds had blown over from the Schmeisers' neighbour or from passing trucks. Thus, genes that Monsanto claimed to "own" under Canadian patent law had ended up in the Schmeisers' seeds.

Not exactly. In fact, Canadian courts had found that Schmeiser's crop could not have been "contaminated" by windblown pollen or seeds falling off a passing truck. Back in 2001, I explained:

The case arose when Monsanto, acting on a tip, sent private investigators to test canola growing in Schmeiser's 900-acre farm in 1997. The tip suggested that Schmeiser might be growing Monsanto's genetically enhanced variety Roundup Ready canola that resists Monsanto's herbicide Roundup. The benefit of the crop: Farmers can spray their fields to kill weeds without harming their canola crop. Before selling Roundup Ready seeds to farmers, Monsanto requires them to license the use of the seeds and sign a Technology Use Agreement (TUA). These agreements require that farmers using Monsanto seeds sell all their crops to approved grain merchants and that they not save seeds for replanting. About 40 percent of all canola grown in Canada is Roundup Ready and some 20,000 Canadian farmers have signed the Monsanto licensing agreements.

In 1997, Schmeiser refused to allow Monsanto's investigators to sample his crops, so they acquired samples from public road right-of-ways on which Schmeiser had planted some canola. These samples were tested and 100 percent were found to be resistant to Roundup. Monsanto also obtained samples from a local mill that had cleaned the 1997 seeds Schmeiser saved for replanting. The samples were tested at the University of Manitoba and 95 to 98 percent were Roundup Ready. "That range is evidence of the presence of commercial Roundup Ready canola," the court ruled.

Eventually, the court ordered Schmeiser to allow Monsanto investigators to sample his 1998 crop. Tests found "the presence of the patented gene in a range of 95-98 percent of the canola sampled."

Schmeiser does not deny that much of the canola growing on his farm in 1997 and 1998 did in fact contain Monsanto's Roundup Ready gene, but he claims that it got there via cross-pollination by the wind and bees, seed blowing off passing grain trucks, or from seed blown by wind onto his property from another farmer's field. Since he didn't ask for the gene to appear on his property, Schmeiser argued that he shouldn't be held liable for infringing Monsanto's patent. In fact, he countered that Monsanto should be held responsible for controlling the genes that it has let loose in the environment.

But as often occurs, court cases turn on particular facts. First, expert testimony accepted by the court explained that mere cross-pollination could not produce a canola crop that was 95 percent to 98 percent Roundup Ready. Second, in 1996, when the alleged cross-pollination would have occurred, the nearest farmer licensed to use Roundup Ready Canola was five miles away. Third, an expert in road vehicle aerodynamics testified that canola seed falling from passing trucks would travel no more than 8.8 meters.

Furthermore, although Schmeiser claimed that he used other herbicides to control weeds in his fields, including Treflan, Muster, and Assure in 1997 and 1998, he could produce no receipts to show that he had purchased those chemicals. However, he did have receipts that showed that he had bought Roundup. Finally, a neighboring farmer testified that Schmeiser's hired hand had told him several times that Schmeiser had grown Roundup Ready canola and then sprayed Roundup on the crop.

The court concluded that it didn't matter how the Roundup Ready canola got onto Schmeiser's farm and that the salient point was that he specifically saved seed that he knew was tolerant of Roundup. Schmeiser's "infringement arises not simply from occasional or limited contamination of his Roundup susceptible canola by plants that are Roundup resistant. He planted his crop for 1998 with seed that he knew or ought to have known was Roundup tolerant." Thus he owed Monsanto a user's fee and some share of the profits from his 1998 crop.

As the Right Livelihood Foundation notes, this trial court decision was eventually upheld by the Canadian Supreme Court.

Whole misleading Right Livelihood citation here.

If you're interested in how famers who choose to grow biotech crops and those who don't can live happily together see the link to my 2001 column on the Schmeiser court case here. Also, see another column on how to set up reasonable standards for co-existence between organic and biotech farmers here.

Disclosure: I used to own some Monsanto stock several years ago, but don't now. It makes me sad to note that Monsanto's total return for the year has been 84 percent. However, its 43 P/E ratio suggests it's too late to buy in now.

*Seed Thief in original headline was meant as a metaphor. But as commenters have pointed out Patent Infringer is the precise legal determination by Canadian courts. 

Comments

|10.2.07 @ 3:01PM|#

The court concluded that it didn't matter how the Roundup Ready canola got onto Schmeiser's farm and that the salient point was that he specifically saved seed that he knew was tolerant of Roundup. Schmeiser's "infringement arises not simply from occasional or limited contamination of his Roundup susceptible canola by plants that are Roundup resistant. He planted his crop for 1998 with seed that he knew or ought to have known was Roundup tolerant." Thus he owed Monsanto a user's fee and some share of the profits from his 1998 crop.

I have a beef with this ruling. What if, and this is a very hypothetical "what if", the saved seeds were indeed not Monsanto created but rather natural genetic mutation that mimicked the Roundup Resistant work that Monsanto has done? Is the farmer still bound by the TUA? Could he be held in violation of patent law by the mere possession of a non-patented item?

Look at it another way, two people create a similar device, indeed so similar they work in exactly the same way, at the same time without each other's knowledge. One resides and patents it in the US, the other resides in Botswana and doesn't patent it at all. The Botswnaian device is sold to a company in the US that had now knowledge of the US patented device. Is that company then in violation of the US patent holder?

Fluffy|10.2.07 @ 3:02PM|#

I actually support Monsanto's right to secure patents on their genetically modified crops.

However, I also strongly believe that a property owner has 100% automatic ownership of anything deposited on his property by natural processes.

If my neighbor has some sort of exotic plant on his property, and spores from that plant blow on to my property and grow, my neighbor just doesn't get to come over to my property and try to take the plants as if they were lambs that wandered away in a fog.

If nature makes it grow on my property, it's mine. Just like any lumber growing on my property would be, or rainwater that falls on to my property would be.

If my neighbor pays Monsanto to seed rain clouds to make it rain on his farm, and it rains on my farm too, he doesn't get to come on my farm and try to get "his" rain back.

|10.2.07 @ 3:02PM|#

"Expert testimony accepted by the court" usually means bullshit that some expert is paid to spew. Especially the aerodynamics expert. I used one of those in a case a few years back. We totally made up the idea that expertise in aerodynamics means anything, and the judge bought, just like the Canadian judge did. He said what we paid him to say. I've seen seeds travel farther than 8.8 meters without the benefit of a truck.

I don't know much about this case, but it seems plausible that this guy's field was contaminated. Hell, I say if you plant a seed you find on your property, you shouldn't owe anybody anything.

|10.2.07 @ 3:03PM|#

Clearly preview should be, but is not, my friend.
The sentence should have read:
"The Botswnaian device is sold to a company in the US that had no knowledge of the US patented device."

|10.2.07 @ 3:10PM|#

Kwix,

Though not an expert on the topic....

If the device from Botswana is imported into the US you have infringement right there. If you could prove that the device was invented in Botswana you could invalidate the US patent. Lack of knowledge of that a device is or isn't patented is NOT an affirmative defense under US patent law, as I know it.

You can own a patented seed as long as you don't use it. Use even if by an individual is infringement.

|10.2.07 @ 3:14PM|#

My huge beef with this and I'm nopt sure it is actually perttinent, but here goes.

I grow our own vegetables. Have been saving seeds for a long time. If some company like Montsano were to come along and say I am stealing seed, when in fact I bought the bloody things from them in the first place and then continued my own practices rather than buying more from them every year I don't think that's right.

I paid them for the seeds (in theory) when I initally purchased them. What I choose to do with the resulting plants and future seeds are none of their damned business.

And yes, if some neighbours plants migrate to my yard (as often happens) what I choose to do with that is my business.

|10.2.07 @ 3:15PM|#

Preview isn't my friend either....
"If you could prove that the device was invented in Botswana you could invalidate the US patent."

If you could prove that the device was invented in Botswana FIRST you could invalidate the US patent.

Its date of invention not date of filing.

|10.2.07 @ 3:16PM|#

Eventually, the court ordered Schmeiser to allow Monsanto investigators to sample his 1998 crop. Tests found "the presence of the patented gene in a range of 95-98 percent of the canola sampled."

OK folks, we don't need to rely on "experts" here. If the above is true then the defendant is guilty and he's lying. Any first year bio student could tell you that. It IS NOT POSSSIBLE that this occurred "accidentally".

Yeah, we know!|10.2.07 @ 3:17PM|#

http://www.reason.com/blog/show/112364.html#372995

|10.2.07 @ 3:20PM|#

capelza,

I think Monsanto's problem is they wouldn't sell you the seeds unless you sign on the lic. agreement. Which probably has a clause in it saying you have rights to one planting and that's it.

|10.2.07 @ 3:31PM|#

Question..

If it wasn't an accident, how did he get the seed in the first place? Obviously he had to buy it somewhere. Wouldn't thee be a record of the purchase and a signed contract not to replant?

|10.2.07 @ 3:32PM|#

Warren: What couldn't have happened naturally? 95-98% of the gene in the farmers field, or 95-98% of the gene in the sample used?

Fluffy|10.2.07 @ 3:33PM|#

Warren, I'm saying that if the seeds are blown on to my property by a natural process, the resulting plants are mine, as are all byproducts of those plants.

If I want to save the seeds from those plants for successive years and replant them until I've got a full field of those plants, it should be tough dots for the guy whose seed blew on to my field in the first place.

This would make it difficult to maintain useful property rights in seed plants, but so what? Don't waste capital on developing property that blows away.

Ryo|10.2.07 @ 3:42PM|#

If Schmeiser didn't buy the seeds from Monsanto, it doesn't really matter how the seeds got there. Whether they were planted by cross-pollination or he knowingly bought them from another farmer and planted them. In either case, I don't see how he's bound to any agreement with Monsanto that he never signed. Unless there's some agriculture like DMCA law in Canada.

If Schmeiser got his seeds from a third party, they're the ones that broke a contract with Monsanto, not Schmeiser.

MattXIV|10.2.07 @ 4:03PM|#

I'm skeptical of patents here (I think that the ability to negotiate and enforce a TULA should be sufficient), but I think that guy was deliberately using Monsanto's seed line. The seed spill from a truck or cross-polination would not be sufficient to explain >90% presence of resistance in the samples. There is no way you could get those levels of transmission by cross pollination, which would require that the pollen fertilizing the seeds also be >90% from Roundup resistant plants (highly unlikey in a field that is supposedly not already roundup resistant) and seeds spilling from a truck would grow alongside the non-resistant seeds, resulting in more modest % of resistance and would be localized. Naturally occuring resistance would face the same problem. Establishing a line where the resistance would be this high from a small inflow of resistant seeds would take several generations of deliberate breeding for the trait. If resistance were present in a smaller fraction of the seeds or it was only that high in a single sample, I'd buy that incidental exposure to resistant seeds or pollen could have caused it, but not >90% from 3 different samples. It doesn't fit any realistic explanation other than that the land was deliberately seeded with a relatively pure supply of resistant seeds in 1997.

|10.2.07 @ 4:05PM|#

Its pretty clear that he didn't get Monsanto seed by cross-pollination. The nearest legal crop was too far away, and you don't get 95%+ rates out of random processes.

The only mystery is how he got his first batch of Monsanto seed, since he admits his subsequent crops were from saved seed. You aren't allowed to profit from wrongful conduct. He never made a credible claim as to how he got the seed, but he sure seemed to know he had Monsanto seed (based on the testimony of his hired hand and his use of Roundup on the field).

I think under these circumstances, the court is entitled to conclude that he got the seed wrongfully, and impose penalties accordingly.

|10.2.07 @ 4:07PM|#

First of all, Monsanto doesn't sell you seeds...they license you the technology in the seeds...so you don;t have property rights to the technology (i.e., Glyphosate resistance).

Second of all, for all you 'contamination equals ownership' folks...A question...so the bank accidentally deposits $1million in your account...do you really think you have a right to use that money once the mistake is discovered?

|10.2.07 @ 4:14PM|#

"Convicted seed thief"? Come on...

|10.2.07 @ 4:14PM|#

gaijin, your analogy doesn't work. One real problem I have is the constant drifting of butterfly bushes from a neighbours yard. it isn't one or two, but many. It isn't a one time shot, it's a continuous problem every year.

If a bank accidentally deposits 5 million in my account one time I will point out that they screwed up. If they continue to do it, as seeds are wont to do, after a few years I'd be mighty tempted to keep it (I wouldn't because someone else would be deprived of their 5 million, but I'd certainly change banks.

But if my neighbours had some plant they prized and wanted to keep for themselves, then they had better keep a tighter rein on it.

|10.2.07 @ 4:15PM|#

"If Schmeiser got his seeds from a third party, they're the ones that broke a contract with Monsanto, not Schmeiser."

That doesn't let Schmeiser off they hook.

If the Monsanto-Third party contract states "you can't sell these seeds" then they are never the third parties to sell. Schmeiser essentially never bought anything because it wasn't the third parties to sell. And its his problem to recover from the third party, assuming there was some sort of fraud there.

Think buying a stolen Rolex off the corner. If you buy it you can't claim. "Hey its mine got a problem with that take it up with the thief."

|10.2.07 @ 4:18PM|#

>It doesn't fit any realistic explanation other than that the land was deliberately seeded with a relatively pure supply of resistant seeds in 1997.

Yes, assuming the seeds were sampled correctly. But what of it? It just feels so much more righteous to deny it and engage in feverish perseverating over the fascist evil geniuses at Monsanto. That corporation must be run by the Devil himself! You know, so to speak. And did I mention that the end is nigh if we allow those seeds to continue replicating and take over the planet?! We will so regret it. Ooh. Sends shivers up my spine just thinking about it.

|10.2.07 @ 4:24PM|#

If they continue to do it, as seeds are wont to do, after a few years I'd be mighty tempted to keep it (I wouldn't because someone else would be deprived of their 5 million, but I'd certainly change banks.

But capelza, that's the root of the analogy ...you can't decide to keep someone else's property just because you are annoyed at their ongoing error...it realy doesn't matter whether it's repeated or not...the guy should have filed trespassing charges or alerted Monsanto to the issue. I suspect he's just anothersack of shit farmer trying to stick it to Monsatan, justifying his theft to save his ass.

|10.2.07 @ 4:25PM|#

If Schmeiser got his seeds from a third party, they're the ones that broke a contract with Monsanto, not Schmeiser.

Well, I don't think it is that simple. If I allow you to use my car for a year and during that time you sell it to a third party (which by our contract you had no right to do) typically I can still recover my car against the third party who would then have an action against you for the fraudulent sale. I'm not saying this is either exactly analogous or that this is the way the law would work in this case - merely that it is not so simple as saying the contract was between two parties so any third party is free to dispose of any acquired property as they wish since they were not part of the original contract. In fact this is generally not the case.

The question of whether the third party is liable does highlight an important trade-off in property laws though: ease of transfer vs. security of title. Too much security and buyers are burdened with expensive research into title status; too little security and owners/sellers are burdened with expensive protections against being fraudulently deprived of their property.

|10.2.07 @ 4:36PM|#

So it sounds like the farmer's full of shit. Ok fine.

Now for a hypothetical scenario:
I'm a farmer and I grow canola. My neighbor also grows canola, and last season he signed up with Monsanto to use their seeds. The pollen floats over to my crop, contaminating my seeds without my knowledge. Several seasons pass and that gene becomes pervasive in my genetic line.

Did I forfeit ownership of my seeds because they contain Monsanto genes? Does my neighbor owe me damages for effectively stealing my seeds and transferring them to Monsanto?

gaijin:
"so the bank accidentally deposits $1million in your account...do you really think you have a right to use that money..."

This is less like money and more like information. You're not talking about theft, but about unauthorized use. It's like saying that copying music constitutes theft instead of copyright infringement.

|10.2.07 @ 4:40PM|#

Infringement is not theft, nor is it piracy. It is infringement. Those other words are just hyperbole to mislead people and get them riled up.

|10.2.07 @ 4:41PM|#

gaijin

He very well may have "stolen" the seed by getting it from a tird or even further removed party.

But...seeds are not money and they DO travel in a way that money does not. Though it would be pleasant if money wafted onto my property instead of butterfly bushes and lawn grass ( I don't do lawn, yet a great bulk of my time is spent pulling someone else's grass seed and other floaty stuff out of my gardens). Is Scott going to come after me for allowing their grass seed to grow in my garden?

Alert someone to seed coming onto my property? Filed trespassing charges? Do you garden in the city, or hell even in rural areas? Seed does not come readily identifiable. It doesn't have a VIN number on it.

I would like to sue anyone that carries seeds on their shoes or clothes and leaves invasive plants like buttcup and other weeds. Or their pets or wild animals or lord kows what. Though I have appreciated some volunteers and you bet I have nutured them.

|10.2.07 @ 4:49PM|#

Though it would be pleasant if money wafted onto my property...

You mean it doesn't? :-)

Seed does not come readily identifiable. It doesn't have a VIN number on it.

No VIN, but when he sprayed his canola with glyphosate, he sure knew what he had...and that's when he should/could have taken action. Instead, he chose to take advantage of other's intellectual property rights.

And while I don't equate the trait technology with money, the crop that it produces after being sprayed with Roundup is surely converted to money.

|10.2.07 @ 4:52PM|#

Did I forfeit ownership of my seeds because they contain Monsanto genes? Does my neighbor owe me damages for effectively stealing my seeds and transferring them to Monsanto?

Those are good questions...that are best answered in collaboration or, if that fails, in court. In this case, the farmer chose to be the decider.

|10.2.07 @ 5:08PM|#

No VIN, but when he sprayed his canola with glyphosate, he sure knew what he had...and that's when he should/could have taken action. Instead, he chose to take advantage of other's intellectual property rights.

Exactly, that's some of the best evidence against him. If the seed only blew off a truck or from my neighbors field then I wouldn't spray with Roundup because only a part of the crop would be Roundup resistant.

Fluffy|10.2.07 @ 5:18PM|#

There seem to be two strains of argument here:

The first one says that the farmer is lying about how the seed got on to his property, and that therefore his defense had no merit. And if he is lying about what happened, this is certainly a reasonable argument.

But then there's gaijin's strain of the argument, which seems to be saying that even if the seed blew on to his property naturally, once he realized the plants growing on his farm showed properties consistent with Monsanto's seed it was the farmer's responsibility to return the seed to Monsanto. And frankly, that's crap.

If I buy a piece of property covered with trees, those trees are mine. 100% mine, without limit or qualification. If some yokel runs up to me to tell me that the trees aren't mine because they grew from his magic beans that he dropped while he was walking across my property, he is shit out of luck. Even if he has a patent for his magic beans.

Plant growth on a piece of property should belongs to the property owner. Period. Because if plants that grew from Monsanto's genemod seed don't really belong to me, then plants that grew from Joe Schmo's ungenemod seed should also not belong to me. If that's the case, you motherfuckers owe me for a shitload of dandelions.

|10.2.07 @ 5:58PM|#

Warren: What couldn't have happened naturally? 95-98% of the gene in the farmers field, or 95-98% of the gene in the sample used?

Only problem is of course that you forgot to actually read the article:

Eventually, the court ordered Schmeiser to allow Monsanto investigators to sample his 1998 crop. Tests found "the presence of the patented gene in a range of 95-98 percent of the canola sampled."

In other words the whole crop was tested.

And the court, who presumabaly would have looked into the valididty of the test concluded:

"infringement arises not simply from occasional or limited contamination of his Roundup susceptible canola by plants that are Roundup resistant. He planted his crop for 1998 with seed that he knew or ought to have known was Roundup tolerant."

Warren, I suggest just ignoring Lamar...he is a proven untrustworthy in his bullshit.

|10.2.07 @ 6:14PM|#

But then there's gaijin's strain of the argument, which seems to be saying that even if the seed blew on to his property naturally, once he realized the plants growing on his farm showed properties consistent with Monsanto's seed it was the farmer's responsibility to return the seed to Monsanto. And frankly, that's crap.

Yes, that is crap. But that is not my argument. My argument is that once you discover someone's property on yours, it's not finder's keepers. You get to go to court and seek damages if you are an asshole. Or you get to try and engage the person in a reasonable compromise. What you don;t get to do is act like someone else's property is yours. And frankly, it appears that the court's agree with that view.

|10.2.07 @ 6:22PM|#

Joshua:

Small nit - "In other words the whole crop was tested." should probably read "A random sampling of his whole crop was performed." I doubt they tested his whole crop, requiring a separate test for each plant.

It seems pretty obvious at this point that the farmer intentionally stole the Monsanto genetics.

What's more interesting to me is where the line is drawn between theft and unintentional pollution, and what the consequences of each should be.

"infringement arises not simply from occasional or limited contamination"... I'd like to see some better definition than that.

If the genes are dominant or selected for by other factors(maybe they make a tougher plant in general, or maybe there's some round-up overspray from my neighbor's farm), they'll end up dominant in a few generations. At what point does Monsanto take ownership of my crop?

Is it incumbent upon the legitimate users of proprietary seeds to somehow contain the genetics - both for my sake and for Monsanto's? Is it incumbent upon neighboring farms to test their seeds to assure they remain free from genes they don't 'own'?

Jennifer|10.2.07 @ 6:25PM|#

I'd still like to know the answer to Jasno's questions. Sooner or later there will be legitimate accidental cross-pollination of the Monsanto seeds. Say I'm a corn farmer harvesting my crop, and save some seed for next year, and it so happens that one cornstalk I save for seed is the Monsanto stalk. How many ears of corn come on one stalk, anyway? That one stalk provides quite a bit of seed. So is this my cornstalk, or Monsanto's? Am I allowed to plant the Monsanto corn? I would say yes.

Fluffy|10.2.07 @ 7:12PM|#

"What you don;t get to do is act like someone else's property is yours."

Gaijin, you refuse to deal with the crux of my argument, which is that all plants that are incidentally growing on my property are my property by definition.

Monsanto has a patent on some modifications they have made to seed, and they "own" the seed they make with that modification. Fine. No problem with that.

But if their seed comes on to my property and a plant grows, that plant is mine. My property. My own.

If you had a barn ful of non-Monsanto seed that you had purchased, that seed would be your property in exactly the same sense and to exactly the same degree as Monsanto's seed is Monsanto's property. But if your seed were to blow on to my property and plants were to grow from it, those plants would be mine. My property. If you came up with some genetic test to prove that those plants came from your seed, it wouldn't matter. If you don't want your seed to turn into plants that I own, keep your seed on your own property. If you can't do that, well, I guess seeds aren't a great sort of property to try to exclusively own, then.

It's as if you were playing a copyrighted song on your property, but were playing so loudly that I could hear it on my property - and then you came over to try to make me pay you a royalty. I would say, "Go fuck yourself. When the sound waves came over the property line, they became mine. If you don't like it, keep your sound on your own damn property."

|10.2.07 @ 8:32PM|#

Sorry Fluffy, I thought I was addressing the crux of your argument.

The problem with your argument, as I see it, is in the assertion "which is that all plants that are incidentally growing on my property are my property by definition."

The courts (in this case and others in the US) have interpreted your property rights differently...Monsanto owns a patent on the plant, it matters not how it got on your property.

Fluffy|10.2.07 @ 9:06PM|#

Actually, they didn't rule any such thing.

The way it got on to this guy's property was the entire basis for the ruling.

The alternative would be to say that if I can simply invent a patented genemod plant that could crosspollinate itself with every grain in cultivation today, I would own all foodstuffs anywhere. Anyone who would even advance such an argument, let alone any magistrate that would issue such a ruling, would deserve to dance at the end of a rope.

|10.2.07 @ 9:24PM|#

"The courts (in this case and others in the US) have interpreted your property rights differently...Monsanto owns a patent on the plant, it matters not how it got on your property."

They have indeed.

I don't know. Fast forward a few decades and assume that Monsanto seed stock continues to spread. What then? What kind of enforcement mechanism are Monsanto going to have to employ to protect against cross-pollination and unlicensed use of their product? What sorts of invasive tactics will they be allowed to use in order to determine whether or not you have any stray Monsanto plants on your property?

These are honest questions. Seems like you haven't thought this out Gaijin. I'm not convinced that the answer is as simple as you let on. And seeds are nothing like money or other forms of property. They tend to mutate and perpetuate themselves, thinly stretching the intellectual property rights argument over time. This seems to be a whole new paradigm we are dealing with--the licensing of biological organisms--and the facile conclusions you've come up with so far aren't at all convincing.

|10.2.07 @ 9:28PM|#

And what Fluffy said. The categorical and absolutist defense of patent rights that Gaijin seems to be offering points toward a scary sort of dystopia that I want no part of.

|10.2.07 @ 9:28PM|#

Fluffy...the US courts have indeed said that you can patent the plant...in other words the product of the proprietary seed.

The issue of how the seed got on Schmeister;s farms was, in my opinion, part of the ruling, but the basis for the property rights in the prior decisions and in the 22 US cases is on who owns the product of the patented seed (i.e. the plant).

The Plant Variety Protection Act was enacted in 1970 and added specific protection for plants that are sexually reproduced, i.e. grown from seeds.

The primary U.S. Supreme Court case which discussing patents for quasi-natural or natural substances is Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 76 USPQ 280 (1948).

If you are nominated for Supreme Court justice, and want to overturn this ruling though, I'll support you :)

|10.2.07 @ 10:01PM|#

These are honest questions. Seems like you haven't thought this out Gaijin.

Well, I certainly don;t claim to have all the answers. I just dont see the scary, invasive future. More likely, in my mind, is that technology will continue to be deployed to protect the trait companies' IP.

Most seed company seed is currently engineered to produce sterile plants. Of course, nature finds a way, but the amount of cross pollination is limited. Which is one reason that Schmeister's claims were held less credible than the alternative explanation.

On balance, the property right's determination in this case and the 22 others in the US present a far less dystopic future in my view than the scenario where biotech crops do not exist.

|10.2.07 @ 10:06PM|#

Patents on self-reproducing things are dumb, but we appear to be stuck with them. The thing I wonder about is why Monsanto isn't just giving the seed away. It ought to promote use of Roundup and it saves them all the hassle with enforcing damn near unenforceable contracts. Give away the shaver, profit on the razor blades.

|10.2.07 @ 11:05PM|#

"Tests found 'the presence of the patented gene in a range of 95-98 percent of the canola sampled.'"

Contradicts:

"In other words the whole crop was tested."

You are assuming a sample from the street is different than a sample prepared by the plaintiff's expert...and you're right. If that expert is worth his salt, it will be a better sample...for the plaintiff. That's how the expert testimony business works.

Ultimately, how the farmer got the infringing crops doesn't seem to matter, at least for legal purposes. It's a neat trick to paint the farmer as a thief even if the law says it doesn't matter for infringement purposes.

Still, when I hear, "But as often occurs, court cases turn on particular facts," that screams 'battle of the experts' and the little guy rarely wins that battle. It appears to have been a side skirmish in this case, but one that swayed the judge.

andy|10.2.07 @ 11:13PM|#

The lady at Farm and Fleet last year was selling me a store-brand glphosate concentrate, basically a generic of roundup pro. She said the patent on roundup had recently expired so this alternative was available. It was nearly half price and has lasted a couple years now(a 2.5 gallon container of concentrate, with a recipe brochure with a lot of warnings)

So for what it worth, some person told some other person that Roundup is off-patent now.

|10.3.07 @ 1:10AM|#

Most Gallant Sir,
It is with most exalted tidings that I make your aquaintance. You see, a most unusual business proposition has presented itself, and I feel you might be able to benefit. A client of my Canadian agricultural supply store has left me with several truckfuls of "roundup ready" rapeseed. He has unfortunately ran afoul of the Monsanto corporation and has not been seen in some time.
If you could supply me with a silo large enough to contain the rapeseed.....

|10.3.07 @ 5:12AM|#

How does 'fair use' apply to a patented agricultural product? Does it apply to growing grains on his own property, then selling them as food, but not selling them as seed?

It seems to me the 'use' of round-up-ready seed is to apply roundup to the crop, so there's a colorable argument that growing his own seed is fair use.

|10.3.07 @ 8:52AM|#

There is no fair use in patent. Patent has the shortest duration but the highest level of protection.

|10.3.07 @ 9:43AM|#

gaijin:

You write: Most seed company seed is currently engineered to produce sterile plants.

Actually, as far as I know no commercially available variety of a genetically enhanced crops is currently made sterile. In fact, activists are completely against this.

Perhaps you are confused by hybrid corn developed in the 1930s and which dramatically boosted yields. By its very nature hybrid corn does not breed true from generation to generation. So corn farmers in the US have been buying commercial seed for decades now.

One other point that people who have never been farmers seem to keep forgetting is that farmers don't have to buy commercial seed of any type unless they find it more valuable to do so. The fact that they usually do means that they tend to make more money using commercial seeds than if they had saved them and replanted.

|10.4.07 @ 12:46AM|#

I hope you get sued for slander and libel for this headline. First of all, there was no conviction as this was a civil dispute not a criminal one. Implying he was convicted is a slanderous statement and wrong. Also, calling him a thief and saying he stole the seed is also slander. Monsanto admitted in court that they had no evidence that he stole the seed, despite the fact that they spoke to over 200 farmers and offered $20,000 of free chemicals to any farmer that would testify against Schmeiser. Keep in mind that the Supreme Court also ruled 9-0 in Schmeiser's favor that he did have to pay the Technology Use Fee; which was the basis of the case. You need to be held accountable for these reckless statements and you desrve to get sued for them.

Nelson|10.6.07 @ 1:23AM|#

Hi,
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