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

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.