Goliath Whomps David
A Canadian federal judge last week ordered 70-year-old Saskatchewan canola farmer Percy Schmeiser to pay $10,000 in user fees and up to $75,000 in profits from his 1998 crop to Monsanto for infringing the company's seed patent. Activists have made Schmeiser a poster boy in their global campaign against crop biotech, portraying the lawsuit as a battle pitting a greedy corporate Goliath against a feisty family farmer David. Canola, also known as oil rapeseed, is a relative of the mustard family. It is raised to produce cooking oil and has become a very high value crop on the Canadian prairies.
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.
Monsanto argues that it must pursue patent infringement cases against farmers like Schmeiser in order to protect its intellectual property. If farmers could save Roundup Ready seeds and replant them year to year, then Monsanto would not be able to recoup its research investment and invest in developing new biotech crop varieties. Also, infringers would get an unfair advantage over farmers who abide by their license agreements with Monsanto.
The court decided that "a farmer whose field contains seed or plants originating from seed spilled into them, or blown as seed, in swaths from a neighbour's land or even 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 own the right to the use of the patented gene, or of the seed or plant containing the patented gene or cell." (Emphasis added.)
Under this ruling it appears that a farmer is not liable for infringement if a patented gene is transferred into his crops by chance and it does not confer a significant advantage on him. For example, if he simply sells his crop without saving any seed, he would not violate the patent and he can pocket whatever money he makes from a crop. Fair enough, but some vexing problems could arise.
First, what percentage of a crop must contain the inadvertently transferred patented gene for it to constitute infringement? It certainly is not fair to hold farmers strictly liable for minor amounts of cross-pollination. Monsanto evidently agrees. "We didn't introduce the technology so we could go out and trick farmers and catch them and sue them for patent infringement," a Monsanto spokesman told Mother Jones last year. "What our concern is that if we have someone who purposefully plants the seed to create a competitive advantage."
Second, under the new international Biosafety Protocol, grain exports that contain more than 1 percent of genetically enhanced grains must be labeled and countries might require that such shipments be segregated from conventional food handling channels. This would be costly. Based as it is on bad science, the protocol does represent a significant obstacle to the international trade of biotech crops. It is not too hard to imagine that farmers trying to grow conventional crops for export may find that their fields have been pollinated with neighboring biotech crops and would therefore fall under the pointless, but onerous, labeling and handling provisions of the Biosafety Protocol.
Third, organic farmers have put themselves in a bind by agreeing to new federal regulations that exclude genetically enhanced crops from being defined as organic. Again, it may be that pollination from biotech crops would cause the crops of some organic farmers to fail to qualify as "organic" under the new regulations.
The good news is that technological fixes may be developed to solve some of these potential problems. For example, the Technology Protection System (TPS) developed by Delta Pine Land Co. and the U.S. Department of Agriculture, is a complex of three genes that makes seeds sterile by interfering with the development of plant embryos. Pollen from plants containing TPS would allow seeds to develop but those seeds could not be used for replanting. Thus TPS gives biotech developers a way to protect their intellectual property while making sure that patented genes are not inadvertently transferred to neighboring farmers.
Another clever biotechnical trick is to confine patented genes to the small genomes of chloroplasts (subcellular mechanisms that use sunlight to make sugars in plants). Pollen doesn't generally contain chloroplasts and so could not transfer patented genes to neighboring farmers.
And one other technique that might be useful is a technology that turns on patented genes in a crop by treating them with certain chemicals that can be purchased from the patent holder. Thus if a farmer saved his seed, he could decide whether he wanted to take advantage of the patented genes in any given year simply by deciding to buy the relevant treatments or not. These patented genes might be transferred via pollen, but they would have no effect on their neighbors' crops.
The fact of the matter is that worrying about farmers infringing on patented genes may just be a transitory problem since U.S. farmers and farmers in other countries with sensible biotech regulations are rapidly adopting genetically enhanced crops. Increasingly, they are finding that the advantages offered them by biotech crops outweigh any costs associated with licensing agreements and the requirement to purchase new seed every year.
