Your general point is accepted: he had never specifically tested the plants in his 1997 field for the gene, and their Roundup resistance could in principle have been due to a spontaneous mutation, in which case the patent would not have been infringed. However, such a spontaneous mutation would be profoundly unlikely, and Percy Schmeiser certainly was aware of that. In particular, if such a mutation did occur, it would be an extremely remarkable coincidence for it to show up in crops all along one roadside, and declining as one moved away from the roadside, which is the spatial pattern of glyphosate resistance observed by Percy Schmeiser. Given that Percy Schmeiser was a professional canola farmer, he would certainly have been aware that 1) glyphosate-resistant genetically engineered canola had just appeared on the market and was being grown in the area; 2) the only glyphosate-resistant canola presently known to humanity derived its resistance from the presence of the inserted gene for glyphosate resistance; 3) spontaneous mutation of a plant to evolve glyphosate resistance is relatively improbable. I think we can reasonably conclude that he would have been quite aware that the overwhelmingly most probable explanation for the appearance of glyphosate-resistant canola along the roadside edge of his field was contamination with genetically engineered canola, rather than a spontaneous mutation.
That is, I think he would have said "oh, darn it, this is likely genetically engineered canola contamination" (well, ok, probably not those exact words), although you are correct, he would not have known it for a fact without actually testing for the gene (or maybe testing for the protein produced by the gene).(I'm going to completely disregard the possibility of spontaneous emergence by natural mutation of the exact same gene for glyphosate resistance, because that is astronomically unlikely.)
(Furthermore, his claim is that the genetically engineered canola was profoundly unwelcome in his fields, as (according to other contributors) he was an organic farmer, and attached great value to his own personal strain of canola. If his story were true, wouldn't the known high likelihood that the observed glyphosate-resistance arose due to contamination with foreign, genetically engineered canola be enough to make him avoid taking his seed from the contaminated region?)
It's a weak argument, but the goal is "innocent until proven guilty" (beyond a reasonable doubt.)
Actually, that's only the standard in criminal cases. In civil cases it is "balance of probabilities", and the requirements relating to the existence of knowledge and intent are also completely different between civil and criminal cases. If he were accused of a crime of growing genetically engineered canola, not that there is one, then that might be a defence. Even in a criminal case, the evidence could still well meet the standard of proof beyond a reasonable doubt; likely the onus would be on him to persuade the court he genuinely did not suspect that the glyphosate-resistance was due to the gene, and failing to persuade the court (i.e. if they thought he did suspect it but was lying about it) would likely be taken as meeting the "proof beyond a reasonable doubt" requirement. Generally, if you commit actions knowing that they are likely criminal but have a slight possibility of not being criminal, that's the necessary intent. I believe (IANAL, obviously) that the facts need to be proved beyond a reasonable doubt, but the proof of intent doesn't require e.g. telepathy on the part of the jury; it is arguments like "you knew X and did Y, therefore you must have had the intent". But really more can not be said without further knowledge about the nature of this hypothetical criminal law.
Furthermore, in a patent infringement case, such as this one, there is in general no requirement whatsoever that the accused infringer had any intent to infringe the patent
Point taken. The phrase "taking advantage of" was subconsciously inserted by myself and represents my own suspicions about what happened. I will concede that it is not supported by the facts of the case as accepted by the court, which I am willing to take as the correct account of the events for the purpose of this discussion, and a more neutral term should be used.
Yes, he knew there were patented genes in the crop, but he was doing what he had done every year for a couple of decades - taking seeds from one year's crop to plant the following year. He believed his own crops were superior to others in the district because he was essentially running his own breeding program.
Well, that's the really odd thing. His actions as described in his own testimony seem awfully bizarre if this was the case. He knew there was a four acre swathe on his property where every single plant surviving was genetically modified, and not one of them was of his own strain. Yet he (or, more precisely, his hired hand operating under his general instructions) took the seed that was going to be saved for the next year from that same swathe. Note that he had plenty of other places to take seed from: he was growing 780 acres of canola that year, and the known contaminated region was four acres along a roadside, with a non-uniform spatial pattern of surviving canola suggestive of local contamination. It could have been a simple mistake. That's an awfully, awfully, awfully big simple mistake. He could have forgotten to tell the hired hand to avoid the contaminated area, but again, that's a pretty spectacular thing to forget given his claim that the glyphosate-resistant canola was so undesirable to him.
In fact he was an organic farmer - he didn't even want the genetically modified stuff there.though.
Again, harvesting the seed for next year from the one spot in his fields where he knew the only thing growing was genetically modified canola is extremely puzzling behaviour for an "organic farmer" who doesn't even want the genetically modified stuff. Even if done inadvertently through carelessness.
And what kind of organic farmer is this exactly? The lower court ruling says "Mr. Schmeiser testified that it is his general practice to use chemical herbicides as little as possible. However, he does use them when necessary for weed control." Sort of organic-lite?
The outcome is that he was not permitted to go about his business as he always had - once he knew there were Monsanto genes in his crop, he could never use seeds from that crop again.
It is only the seeds from the four acres of known contamination he couldn't use. He could have taken seeds from any of the other 776 acres of untested canola, and gone about his business as he always had.
Local!? Pfft! What an insult! That would be Assistant Vice-Overlord of Operations, Planet Earth, Sol System, Phase III, thank you. It is a considered a local position, but not on the spatial scales you had in mind.
That's not really what the law says... It's really silent on patented life
The Patent Act might be silent, but there does exist case law. Bottom line: lower lifeforms (plants and microorganisms) are patentable, higher lifeforms (oncomice) are not. That is not to say that's the final word on it, of course, and that there isn't life in the issue still. The judgments go into this in some detail, so they'd be a worthwhile place to look.
My understanding of patent law is that it applies more to the process than the result.
My understanding is that it prevents one from using the invention, and from reproducing the invention. I don't think there's any real question that planting seeds that are known to be from a patent plant constitutes use of the inventions, and also reproduction of the inventions which in this case are a genetically engineered plant, and also plant cells containing the inserted gene. The judgments go into this in quite some detail, too.
Maybe in the case you cite (patent leather shoes) the shiny shoe itself is not the invention?
What if someone simply bred themselves some roundup-resistant plants, would Monsanto then have a claim on these plants simply because they're roundup resistant?
No. Your point is correct, they only have a patent on certain types of plants that possess glyphosate resistance due to a specific inserted gene. Glyphosate resistance induced by any other means is not covered.
Or what about somebody who accidently sprayed his crop and found that he had a 30% mix of roundup-resistant seeds in his quarter-section? Would he then owe that last 30% of his crop to Monsanto?
I believe that under the current rulings he wouldn't owe anything to Monsanto. He could harvest that seed and sell it, as that would not infringe the patent by using/reproducing the invention. He would not be able to take seed from that last 30% and plant it in his fields next year. If he did that, he would infringe the patent and then would owe something to Monsanto. I would note that a farmer who sprays his fields with Roundup and kills all his crops (at least, the ones not covered by the patent) is only a victim of his own incompetence, not of the patent laws. That is, if you kill all your plants (save a few glyphosate resistant ones), your resulting unfortunate situation is entirely of your own making.
Worse yet -- if a Monsanto GM strain were accidently crossbred with some other company's GM strain would a farmer who realized this now owe a copy of his crop to both companies?
The farmers don't actually owe the companies anything, though. They just can't replant the seeds without infringing the patents. I suppose they could infringe two patents at once, but you can do that with non-living, non-genetically-modified inventions too. Then you have twice as many lawsuits to fight.
As the sections of the judgement you quoted demonstrate, the seeds were taken from a field that was known to have Roundup Ready Canola in it - there was no systematic attempt to gather specifically Roundup Ready canola.
Agreed. I would not claim otherwise. That is to say, the evidence doesn't strictly rule out a systematic attempt, but it certainly doesn't include anything positive indication there was one, so I think for the purposes of this discussion we should certainly presume there wasn't.
It sounds, to me, like Percy Schmeiser's story in court might have been that although they knew there was glyphosate-resistant seed there, they didn't particularly think of it when harvesting seed i.e. they started driving the combine at that side of the field, and kept the first load and gave the presence of the glyphosate-resistant canola no particular thought. I would note, though, that "carelessness" is not a defense against patent infringement.
It is also consistent with the paragraphs I quoted that Percy Schmeiser may have not been personally aware that the seed his hired hand kept was the seed from the edge of the field: i.e. maybe he never said "what part of the field did you take the seed from?" and never thought about the possibility that it might have been taken from the contaminated region. With regard to this last point, note that it is actually Percy Schmeiser's farming company, not Percy Schmeiser the individual, that was found liable for patent infringement. The judge found that Mr. Schmeiser is presumed to have available to him information that is available to an employee carrying out his duties in accordance to Mr. Schmeiser's general directions. So, even if he didn't appreciate that the particular seeds going into the ground were the glyphosate-resistant ones, the information was still available for him and he was responsible for being aware of it, and for the purposes of this case is deemed to have been aware of it. (Again, note that we're dealing with civil liability of a corporation for its actions, not liability of an individual, whether civil or criminal.)
I would note though, that in view of Percy Schmeiser's claims that glyphosate-resistant canola was an extremely unwelcome contaminant, and that he has been greatly distressed by the loss of his own personal strain of canola, which represented his life's work, it is profoundly odd that, knowing there was a 4 acre swath where the only thing growing was foreign canola not of his strain, he did not make a point of avoiding taking seed for his next year's crop from there. The quoted paragraphs suggest it appeared to be localized contamination along a roadside at the edge of one field. In that year (1997) he was growing 780 acres of canola. Thus the known contaminated tested area represented slightly over 0.5% of the total area he had growing. If indeed the loss of his own strain of canola was such a hardship and so upsetting, it is an oversight of fairly incredible proportions not to say to the hired hand "make sure you don't take the canola seed for next year from the contaminated strip. Take it from elsewhere preferably as far from the contamination as possible."
Thus, contrary to your claim, the issue of the rights of the patent holder versus the property holder in a case of natural/accidental seed contamination is anything but settled.
Yes, your point is correct. I think what I had in mind when I wrote that was an unwitting accidental infringer. I will concede that the judge identifies a case where there could be "witting" accidental infringement, and that does remain unsettled.
Would you agree with my assessment/interpretation that in the case of unwitting and accidental contamination, the farmer would be in the clear, according to the courts' rulings?
You are incorrect. You no longer have a (legal) right to grow marijuana since it has been made illegal but to say that there has never been a right to do so is obviously untrue. You have the (legal) right to do anything that is not against the law
Conceded. You are correct, my statement "there has never been any right to harvest seeds from marijuana..." was indeed incorrect in the sense you point out.
So, am I supposed to now make sure your IP doesn't find itself into my materials? How? Am I supposed to test the genetic sequences of ALL the plants that I have? This isn't a case where I'm going out and collecting YOUR IP in order to grow new plants - this is a case where your IP is contaminating my plants as a normal course of operation.
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.
It's common practice in farming to retain seed from each crop to plant in the next year. What Monsanto is effectively doing is denying the farmer the right to carry on a traditional practice. The only thing the farmer is doing purposefully, apparently, is growing from the seed harvested on his own land. That traditional practice needs to be fully protected in law.
Well, it's never really been a traditional right. For example, there has never been any right to harvest seeds from marijuana plants one finds growing on one's property and use them to plant a crop of marijuana in the following year. The right to re-plant seeds is a consequence of the right to do anything one wants to with one's property except where that violates a law. Ordinarily saving and replanting seeds does not violate a law. What Mr. Schmeiser did with his property, saving and replanting seeds from plants he had determined were glyphosate resistant, did violate a law, one that says that one may not grow glyphosate-resistant canola without a licence.
Note that I am not questioning your point that there ought to be such a law guaranteeing such a right. I will however note that the only purpose of creating such a legal right for farmers would seem to be to allow them to knowingly grow patented crops. Wouldn't a simpler way of effecting exactly the same thing be to simply not allow patents on genetically engineered plants?
I would say that Mr. Schmeiser's strategy of basing his defence on the existence of such a right in Canadian law, when there in fact is not nor has ever been one (not even traditionally) was not such a smart move, legally. It is not the job of the courts to deal with what the laws ought to be, but rather what they actually are. If you don't like what the law is, the smart thing to do is lobby parliament to change the law, not go to court to claim the law is on your side, when it isn't.
So in his testimony he admits that Monsanto contaminated his field. And this is their defense, that he stole the seed that they grew on his field without his permission?! Weak, very weak.
"stole"? But he was not charged with theft. He was sued for patent infringement. I am puzzled why people feel the fact that he took the seed from contaminating plants he found on his property makes it any less of an example of patent infringement. There is no exemption allowing one to infringe patents provided one uses one's own property to do so. This is the case with all patents. It is not something special to this case. Why is there this belief that he shouldn't be found in infringement of the patent unless he somehow illicitly obtained the seeds? It's not like there's a corresponding requirement in any other patent case.
The underlying reasoning seems to be that "you can do anything you like with your own property". Except of course, that you can't. Canada has a wide variety of laws prohibiting things you can do with your own property. There are many examples. Here are some:
*I may own pieces of metal and metalworking tools, but I may not fashion the pieces of metal into submachine guns.
*I may own piperidine, cyclohexanone and phenylmagnesium bromide, but I am not allowed to mix them in such a way as to produce phencyclidine (aka PCP).
*I can not use my own property to reproduce a patented invention without a licence from the patent holder. (This is the one of particular concern in this case.)
*I may own blank CD's and a CD burner, but if I burn a certain pattern of bits onto these blank CD's and sell them, I can be found liable for copyright infringement.
"the judge agreed a farmer can generally own the seeds or plants grown on his land if they blow in or are carried there by pollen -- but the judge says this is not true in the case of genetically modified seed."
What? No, in fact the judge ruled that plants which grow on the farmer's land, even if they are blown in or are carried there by pollen, are the outright property of the farmer and the farmer enjoys the same property rights over them that anyone enjoys over their own property. The catch is that one has no right to infringe a patent with one's own property. For example, I might own a semiconductor fabrication plant (I don't, in actual fact) and I might own a bunch of semiconductor materials, but if I were to use them to manufacture microprocessors which, say, infringed an Intel patent, I'd probably hear from their lawyers. And if I were to argue "but I owned all the physical property involved", it probably wouldn't carry much weight. This is why Percy Schmeiser's protest "but I harvested the seed from plants I found growing on my own property" has cut very little weight with the courts. It is a patent infringement case. It is not a "misusing someone else's physical property" case.
In his defense, Schmeiser showed his own farm-based evidence that the fields ranged from nearly zero to 68% Roundup Ready. These tests were confirmed by independent tests performed by research scientists at the University of Manitoba, in Winnipeg, MB.
Yes. Except that there were also independent tests which indicated the plants growing in his fields in 1998 had the gene for glyphosate resistance present at a much higher rate. The results you quote are the anomalous ones among the selection of tests performed.
[105] A variety of tests were conducted on samples of canola from the defendants' field or from beside those fields. The evidence of these tests of Mr. Schmeiser's 1997 and 1998 canola crops may be summarized as follows.
[106] The 1997 samples, taken by Mr. Derbyshire from road allowances bordering fields number 2 and 5, were used for two grow-out tests, in 1997 at the University of Saskatchewan for Mr. Mitchell, and in 2000 at the university for Dr. Downey. In both tests, with the exception of one of six samples, of the seeds that germinated 100% of the plants survived spraying with Roundup herbicide, i.e., they were Roundup tolerant.
[107] The HFM samples of untreated and treated seed withheld from Mr. Schmeiser were provided
1) to Mr. Mitchell for Monsanto in 1998 and by him
a) were subject to a "quick test" which indicated to him that both samples tested were positive for the presence of the patented gene;
b) were subject to a grow-out test by Prairie Plant Systems in January, 1999 with germinating seed sprayed with Roundup and 30 samples of leaf tissue from surviving plants, tested by Monsanto US, proved positive for the presence of the patented gene in the DNA of the leaf tissue; and
c) a subsample was sent to counsel for Schmeiser in April 1999 and by him to Mr. Freisen at Winnipeg for a grow-out test, in which 95 to 98% of germinating plants survived spraying with Roundup;
2) to Mr. Schmeiser in July 1999 which he
a) used in part for a grow-out test in his yard, results of which showed 63 to 65% germinating plants survived spraying with Roundup; and
b) forwarded to University of Manitoba for testing by Mr. Freisen who recorded results generally similar to those of Mr. Schmeiser;
3) to Mr. Freisen directly from Saskatchewan Wheat Pool in April 2000 for grow-out test from which a very high portion, 95-98%, of germinating seed survived spraying with Roundup.
[108] The July 1998 leaf samples, by Mr. Shwydiuk, from the road allowance borders of Schmeiser's nine fi
Monsanto can't prove that they didn't contaminate his field
I don't understand why they'd have to. Percy Schmeiser has already testified in court that the glyphosate resistant canola seeds growing in his fields in 1998 were 1) planted there by an employee of his; 2) were taken from plants growing in his fields in 1997 which he had identified as being glyphosate resistant. The court took his account of the facts as being the canonical one. They ruled that even with the facts as he stated them, his company infringed the patent by planting glyphosate-resistant canola seed, that was known, or should have been known to be, glyphosate resistant.
So,they have nothing to prove, and wouldn't be allowed to try if they could. The fact-finding in the case is done; it can't be reopened at the appeal level. Percy Schmeiser won it. His version of the facts stands. And so far the courts have ruled in Monsanto's favour even with his account of the facts.
they are shaking in their large, multi-billion dollar boots because a farmer from Saskatchewan is about to bring part of them down.
I very much doubt it. They won the first two rounds and legally, their case sure looks pretty ironclad (IANAL, though). Legally, Percy has not a leg to stand on. He used a patented invention. He admits it. Says he knew what it was, too. Not a lot of wiggle room there. That's why he not only lost, but got assigned costs, which is the court's way of say "you really lost, and please stop wasting our time".
The following excerpt's from the first court ruling might clarify my claim's about Mr. Schmeiser's account of the facts:
[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 result 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.
And if this a case about accidental/natural seed contamination, why isn't every farmer on the planet trying to bring down Monsanto?
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 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.
>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.
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:
[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.
Well, that _is_ the point of patent law, to restrict what a person can do with their own property. For example, I can't make patented drugs just because I own the precursor chemicals. Just because I happen to own transistors, resistors and wires, I can't solder them together in any way I want to. In both these cases all the physical property is purely my own. If you object to the idea of patents in general, fine, of course.
I can't really see someone as a helpless victim because they successfully get sued for patent infringement when they knowingly and intentionally planted 1030 acres of genetically modified canola with full knowledge of what they were planting. If it was a case of minor and unwitting contamination that would be different. But that's not what happened in this case.
I don't think so. He didn't just go ahead using his crop with the partial contamination, without doing anything differently. He went and selected out the genetically modified plants, obtaining seeds that were nearly entirely genetically modified. There is absolutely no reason to do this if he is just going to "make the best of a bad situation and try to use what he now has - a crop at least partially containing genetically modified seeds". If you don't want to specifically farm the GM canola, a mixture of regular and GM is just as good as any other. But he didn't go with the mixture. He went with all GM. As well, he testified that the glyphosate resistant plants were only along the roadside, and that the concentration dropped off as one moved away from the roadside. So he could easily have taken his seeds from the other side of the same field, or from another one of his several fields of canola. Of course, even if he couldn't be bothered to do that, he was still fully aware before he planted the 1998 crop (the one that the judgement against him addressed) that the seed he had was glyphosate resistant to a high degree.
>The unpleasant thing about the Monsanto case was >that there was no evidence that the farmer had >done anything wrong.
I don't know that I'd agree with "no evidence". The farmer himself testified that when he suspected there was glyphosate resistant canola growing in part of one of his fields, he then went and sprayed a larger area with glyphosate. He then took the seeds from the plants that survived the spraying and planted his entire next year's crop with them. This established that the presence of the genetically modified canola growing in his fields the next year -- which is the crop that was found to infringe the patent, not the crop from the previous year -- was planted deliberately and with full knowledge of its glyphosate resistant properties. I can't see how one could put any construction on the farmer's behaviour, as he himself described it, other than that he wanted to farm the genetically modified canola but didn't want to pay the licence fees.
I assume you are aware of the distinction between Mr. Shmeiser's 1998 crop, over which he was sued, and his 1997 crop, over which he was not sued. Mr. Shmeiser only claimed that the gene got in accidentally for the 1997 crop, not the 1998 crop. The 1998 crop was planted with seed obtained from the 1997 crop which Mr. Shmeiser knew to be Roundup resistant, and indeed, which he claimed he had treated with Roundup, presumably thus increasing the fraction of gene-bearing plants.
Also, specifically regarding your assertion that "Nowhere in that court ruling is there any information whatsoever to be found on how exactly the Monsanto product got onto Mr. Schmeiser's property, i.e. whether Mr. Schmeiser intentionally obtained it by any means, or whether the contamination to his crop was transmitted by pollen, the latter being the more likely of the two.", in fact, in paragraphs 117-118 the judge concludes on the basis of evidence presented at trial that it did not get into Mr. Shmeiser's 1997 crop by any of the accidental means you or Mr. Shmeiser have proposed. Keep in mind that the nearest field of genetically engineered canola growing in the previous year (1996) was five miles away from field number 2 (paragraph 33). Note that this does not exclude accidental means that neither you nor Mr. Shmeiser have thought of, nor does it exclude the intentional placement by others. Note also that whether or not the original plants were intentionally brought onto Mr. Shmeiser's property to appear in 1997 crop is not relevant to whether he infringed the patent with his 1998 crop, or to the fact that he knowingly and intentionally planted his 1998 crop with Roundup resistant seed: patents don't just prevent you from using the brand name product, they also prohibit you from using no-name or home-made products that work by means of the same technology, which is essentially what Mr. Shmeiser is claiming happened regarding his 1998 crop. (Indeed, that is the whole point of a patent and they would be essentially of no effect if they did not do this.) Finally, this being a civil trial, keep in mind that the standard of proof applied to reach the conclusion in the last sentence of 118 is merely the "balance of probabilities" i.e. more likely than not.
[117] A variety of possible sources were
suggested, including cross field breeding by wind
or insects, seed blown from passing trucks, or
dropping from farm equipment, or swaths blown
from neighbours' fields. All of these sources, it
is urged, could be potential contributors to
cross-breeding of Schmeiser's own canola or to
deposit of seeds on his land without his consent.
[...]
[118] It may be that some Roundup Ready seed was
carried to Mr. Schmeiser's field without his
knowledge. Some such seed might have survived
the winter to germinate in the spring of 1998.
However, I am persuaded by evidence of Dr. Keith
Downey, an expert witness appearing for the
plaintiffs, that none of the suggested sources
could reasonably explain the concentration or
extent of Roundup Ready canola of a commercial
quality evident from the results of tests on
Schmeiser's crop. His view was supported in part
by evidence of Dr. Barry Hertz, a mechanical
engineer, whose evidence scientifically
demonstrated the limited distance that canola
seed blown from trucks in the road way could be
expected to spread. I am persuaded on the basis
of Dr. Downey's evidence that on a balance of
probabilities 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.
I'm flattered that you think so. Perhaps you could drop an e-mail to Monsanto and tell them that they ought to be giving me money. In the interests of full disclosure, as an undergrad student in 1994 I had a summer intern lab job with them for three months, but have had no connection with them ever since. Also, since then, I have switched to a very different field in which they are not involved, so I don't even have to worry about keeping on their good side, professionally.
Anyway, as for your comments, the judgement says (added emphasis mine):
[11]The defendants do not deny the presence of
Roundup Ready canola in their fields in 1998, but
they urged at trial that
neither Mr. Schmeiser nor Schmeiser Enterprises
Ltd. have ever deliberately planted, or caused to be planted, any seeds licensed by the plaintiffs containing the patented gene.
Mr. Shmeiser was disputing only that the seed came from Monsanto. The words "licensed by the plaintiff" are key in the paragraph you quote. He did not dispute that he planted plants containing the patented gene, only that he planted plants licensed by Monsanto which contained the patented gene. There's quite a big difference.
He testified that he found some Round-Up resistant canola in his fields, which got there unintentionally, sprayed the area with Round-Up, thus killing the non-genetically-modified canola, and took seed from the surviving (Round-Up resistant) plants to plant his 1998 crop for which he was eventually sued. Thus his claim that the crop was not planted with seed licensed from Monsanto, and my claim that he acknowledged that he had knowingly and deliberately seeded his nine fields with Round-Up resistant canola. Paragraph 11 is not inconsistent with anything I said in my previous post.
However, people have been making the claims that the suit related to minor or partial presence of the gene in his crops, which is simply not true, and that it was unwanted on his part, which is evidently not true or he wouldn't have gone to so much effort to obtain Round-Up resistant seed, and only Round-Up resistant seed, with which to plant his 1998 crop.
You also seem to have missed certain crucial paragraphs of the decision. Paragraphs 119 deals with Mr. Shmeiser's defence that he didn't get the seed from Monsanto but obtained it by selecting Round-Up resistant plants that he found in his fields. The point is legally moot, the issue in the case being patent infringement i.e. whether he was using the invention, not whether he got his hands on the seed improperly.
[119] Yet 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. It is clear
from Mr. Schmeiser himself that he retained seed grown in 1996 in field number 1 to be his seed
for the 1997 crop. In 1997 he was aware that the crop in field number 2
showed a very high level of tolerance to Roundup
herbicide and seed from
that field was harvested, and retained for seed for 1998.
[120] I find that in 1998 Mr. Schmeiser planted canola seed saved from
his 1997 crop in his field number 2 which seed he knew or ought to have known was Roundup tolerant, and that seed was the primary source for
seeding and for the defendants' crops in all nine fields of canola in 1998.
[124] For the defendants it is urged that a finding of infringement
will adversely affect the longstanding right of a farmer to save his own seed for
use for another crop. In particular it is urged that those who do not purchase
Roundup Ready canola seed but find the plant
invading their land would be
precluded from saving their own seed for use another year since their crop
may be contaminated without action by the farmer on whose land plants
containing the patented gene are found.
[125] That clearly is not Mr. Schmeiser's case in relation to his 1998
crop. I have found that he seeded that crop from seed saved in 1997 which
he knew or ought to have known was Roundup tolerant, and samples of
plants from that seed were found to contain the
plaintiffs' patented claims
for genes and cells. His 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.
The case seems pretty clear: farmer wants to grow Round-Up resistant canola but doesn't want to pay license fees. He does so. Patent owner says this is patent infringement. Court agrees.
Again, simply not true. There is a strip of publicly owned land along the side of the roads so that the government can do things like put in utility poles etc. Mr. Shmeiser planted his crops right up to the edge of the roads, onto the publicly owned land. This is customary among farmers and is accepted and legal. Monsanto took their initial samples from this public property without going onto his private property. On the basis of the results from these samples they went to court and got a court order allowing them to take samples from within his fields. It's all in the Federal Court of Canada judgement, if you're actually interested in getting actual, true, facts in the case. Of course, I think most people don't care what actually happened because they like to demonize Monsanto, so if the facts aren't in agreement with this, they seem to like to make up ones that are.
Your sources -- anti-GM activists and Percy Shmeiser -- might possibly not be the best for accurate facts. Take a look at the actual judgement in the case, which recaps the evidence. Mr. Shmeiser intentionally and knowingly switched his farming business over to GM canola. He obtained a quantity of seed that he knew to have an extremely high level of glyphosate resistance and planted his fields with it. This is a matter of public record and was never contested by Mr. Shmeiser, at least not in court under penalty of perjury. And that's his own testimony.
His argument was that he had found GM canola growing in his fields in earlier years, and had selected out the glyphosate resistant plants by treating them with glyphosate to kill the non-glyphosate resistant ones. Thus he hadn't violated any license agreement with Monsanto. Unfortunately, he was sued for patent infringement, and in patent infringement it doesn't matter where you got the materials from. All that matters is whether you're using an invention that someone has patented.
It's simply not true that he was sued for minor or accidental contamination of his crops. He was growing 9 fields - 1030 acres - of entirely (actually 95-98% gene-bearing i.e. commercial levels) genetically modified canola, and he put it there knowing what it was, by his own testimony in court.
(Strictly speaking, he never said he knew the gene was in the plants. He knew that they survived spraying with Round-Up. But he did know that they were Round-Up resistant.)
One might also note that the judge made a finding of fact in the case that the original source of GM canola in Mr. Shmeiser's fields was not any of the possible unintentional sources he described, since none of them could reasonably have gotten that much GM canola into his fields to allow him to plant 1030 acres of it one year later. It's not like there were seed-carrying trucks overturning on the road near his farm in gale-force winds every day, for instance. Reading between the lines, the judge was saying Mr. Shmeiser was lying about where he got the seed from.
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That is, I think he would have said "oh, darn it, this is likely genetically engineered canola contamination" (well, ok, probably not those exact words), although you are correct, he would not have known it for a fact without actually testing for the gene (or maybe testing for the protein produced by the gene).(I'm going to completely disregard the possibility of spontaneous emergence by natural mutation of the exact same gene for glyphosate resistance, because that is astronomically unlikely.)
(Furthermore, his claim is that the genetically engineered canola was profoundly unwelcome in his fields, as (according to other contributors) he was an organic farmer, and attached great value to his own personal strain of canola. If his story were true, wouldn't the known high likelihood that the observed glyphosate-resistance arose due to contamination with foreign, genetically engineered canola be enough to make him avoid taking his seed from the contaminated region?)
It's a weak argument, but the goal is "innocent until proven guilty" (beyond a reasonable doubt.)
Actually, that's only the standard in criminal cases. In civil cases it is "balance of probabilities", and the requirements relating to the existence of knowledge and intent are also completely different between civil and criminal cases. If he were accused of a crime of growing genetically engineered canola, not that there is one, then that might be a defence. Even in a criminal case, the evidence could still well meet the standard of proof beyond a reasonable doubt; likely the onus would be on him to persuade the court he genuinely did not suspect that the glyphosate-resistance was due to the gene, and failing to persuade the court (i.e. if they thought he did suspect it but was lying about it) would likely be taken as meeting the "proof beyond a reasonable doubt" requirement. Generally, if you commit actions knowing that they are likely criminal but have a slight possibility of not being criminal, that's the necessary intent. I believe (IANAL, obviously) that the facts need to be proved beyond a reasonable doubt, but the proof of intent doesn't require e.g. telepathy on the part of the jury; it is arguments like "you knew X and did Y, therefore you must have had the intent".
But really more can not be said without further knowledge about the nature of this hypothetical criminal law.
Furthermore, in a patent infringement case, such as this one, there
is in general no requirement whatsoever that the accused infringer had any intent to infringe the patent
Point taken. The phrase "taking advantage of" was subconsciously inserted by myself and represents my own suspicions about what happened. I will concede that it is not supported by the facts of the case as accepted by the court, which I am willing to take as the correct account of the events for the purpose of this discussion, and a more neutral term should be used.
Yes, he knew there were patented genes in the crop, but he was doing what he had done every year for a couple of decades - taking seeds from one year's crop to plant the following year. He believed his own crops were superior to others in the district because he was essentially running his own breeding program.
Well, that's the really odd thing. His actions as described in his own testimony seem awfully bizarre if this was the case. He knew there was a four acre swathe on his property where every single plant surviving was genetically modified, and not one of them was of his own strain. Yet he (or, more precisely, his hired hand operating under his general instructions) took the seed that was going to be saved for the next year from that same swathe. Note that he had plenty of other places to take seed from: he was growing 780 acres of canola that year, and the known contaminated region was four acres along a roadside, with a non-uniform spatial pattern of surviving canola suggestive of local contamination. It could have been a simple mistake. That's an awfully, awfully, awfully big simple mistake. He could have forgotten to tell the hired hand to avoid the contaminated area, but again, that's a pretty spectacular thing to forget given his claim that the glyphosate-resistant canola was so undesirable to him.
In fact he was an organic farmer - he didn't even want the genetically modified stuff there.though.
Again, harvesting the seed for next year from the one spot in his fields where he knew the only thing growing was genetically modified canola is extremely puzzling behaviour for an "organic farmer" who doesn't even want the genetically modified stuff. Even if done inadvertently through carelessness.
And what kind of organic farmer is this exactly? The lower court ruling says "Mr. Schmeiser testified that it is his general practice to use chemical herbicides as little as possible. However, he does use them when necessary for weed control." Sort of organic-lite?
The outcome is that he was not permitted to go about his business as he always had - once he knew there were Monsanto genes in his crop, he could never use seeds from that crop again.
It is only the seeds from the four acres of known contamination he couldn't use. He could have taken seeds from any of the other 776 acres of untested canola, and gone about his business as he always had.
Local!? Pfft! What an insult! That would be Assistant Vice-Overlord of Operations, Planet Earth, Sol System, Phase III, thank you. It is a considered a local position, but not on the spatial scales you had in mind.
That's not really what the law says... It's really silent on patented life
The Patent Act might be silent, but there does exist case law. Bottom line: lower lifeforms (plants and microorganisms) are patentable, higher lifeforms (oncomice) are not. That is not to say that's the final word on it, of course, and that there isn't life in the issue still. The judgments go into this in some detail, so they'd be a worthwhile place to look.
My understanding of patent law is that it applies more to the process than the result.
My understanding is that it prevents one from using the invention, and from reproducing the invention. I don't think there's any real question that planting seeds that are known to be from a patent plant constitutes use of the inventions, and also reproduction of the inventions which in this case are a genetically engineered plant, and also plant cells containing the inserted gene. The judgments go into this in quite some detail, too.
Maybe in the case you cite (patent leather shoes) the shiny shoe itself is not the invention?
What if someone simply bred themselves some roundup-resistant plants, would Monsanto then have a claim on these plants simply because they're roundup resistant?
No. Your point is correct, they only have a patent on certain types of plants that possess glyphosate resistance due to a specific inserted gene. Glyphosate resistance induced by any other means is not covered.
Or what about somebody who accidently sprayed his crop and found that he had a 30% mix of roundup-resistant seeds in his quarter-section? Would he then owe that last 30% of his crop to Monsanto?
I believe that under the current rulings
he wouldn't owe anything to Monsanto. He could harvest that seed and sell it, as that would not infringe the patent by using/reproducing the invention. He would not be able to take seed from that last 30% and plant it in his fields next year. If he did that, he would infringe the patent and then would owe something to Monsanto. I would note that a farmer who sprays his fields with Roundup and kills all his crops (at least, the ones not covered by the patent) is only a victim of his own incompetence, not of the patent laws. That is, if you kill all your plants (save a few glyphosate resistant ones), your resulting unfortunate situation is entirely of your own making.
Worse yet -- if a Monsanto GM strain were accidently crossbred with some other company's GM strain would a farmer who realized this now owe a copy of his crop to both companies?
The farmers don't actually owe the companies anything, though. They just can't replant the seeds without infringing the patents. I suppose they could infringe two patents at once, but you can do that with non-living, non-genetically-modified inventions too. Then you have twice as many lawsuits to fight.
Agreed. I would not claim otherwise. That is to say, the evidence doesn't strictly rule out a systematic attempt, but it certainly doesn't include anything positive indication there was one, so I think for the purposes of this discussion we should certainly presume there wasn't.
It sounds, to me, like Percy Schmeiser's story in court might have been that although they knew there was glyphosate-resistant seed there, they didn't particularly think of it when harvesting seed i.e. they started driving the combine at that side of the field, and kept the first load and gave the presence of the glyphosate-resistant canola no particular thought. I would note, though, that "carelessness" is not a defense against patent infringement.
It is also consistent with the paragraphs I quoted that Percy Schmeiser may have not been personally aware that the seed his hired hand kept was the seed from the edge of the field: i.e. maybe he never said "what part of the field did you take the seed from?" and never thought about the possibility that it might have been taken from the contaminated region. With regard to this last point, note that it is actually Percy Schmeiser's farming company, not Percy Schmeiser the individual, that was found liable for patent infringement. The judge found that Mr. Schmeiser is presumed to have available to him information that is available to an employee carrying out his duties in accordance to Mr. Schmeiser's general directions. So, even if he didn't appreciate that the particular seeds going into the ground were the glyphosate-resistant ones, the information was still available for him and he was responsible for being aware of it, and for the purposes of this case is deemed to have been aware of it. (Again, note that we're dealing with civil liability of a corporation for its actions, not liability of an individual, whether civil or criminal.)
I would note though, that in view of Percy Schmeiser's claims that glyphosate-resistant canola was an extremely unwelcome contaminant, and that he has been greatly distressed by the loss of his own personal strain of canola, which represented his life's work, it is profoundly odd that, knowing there was a 4 acre swath where the only thing growing was foreign canola not of his strain, he did not make a point of avoiding taking seed for his next year's crop from there. The quoted paragraphs suggest it appeared to be localized contamination along a roadside at the edge of one field. In that year (1997) he was growing 780 acres of canola. Thus the known contaminated tested area represented slightly over 0.5% of the total area he had growing. If indeed the loss of his own strain of canola was such a hardship and so upsetting, it is an oversight of fairly incredible proportions not to say to the hired hand "make sure you don't take the canola seed for next year from the contaminated strip. Take it from elsewhere preferably as far from the contamination as possible."
Yes, your point is correct. I think what I had in mind when I wrote that was an unwitting accidental infringer. I will concede that the judge identifies a case where there could be "witting" accidental infringement, and that does remain unsettled.
Would you agree with my assessment/interpretation that in the case of unwitting and accidental contamination, the farmer would be in the clear, according to the courts' rulings?
Conceded. You are correct, my statement "there has never been any right to harvest seeds from marijuana
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.
Well, it's never really been a traditional right. For example, there has never been any right to harvest seeds from marijuana plants one finds growing on one's property and use them to plant a crop of marijuana in the following year. The right to re-plant seeds is a consequence of the right to do anything one wants to with one's property except where that violates a law. Ordinarily saving and replanting seeds does not violate a law. What Mr. Schmeiser did with his property, saving and replanting seeds from plants he had determined were glyphosate resistant, did violate a law, one that says that one may not grow glyphosate-resistant canola without a licence.
Note that I am not questioning your point that there ought to be such a law guaranteeing such a right. I will however note that the only purpose of creating such a legal right for farmers would seem to be to allow them to knowingly grow patented crops. Wouldn't a simpler way of effecting exactly the same thing be to simply not allow patents on genetically engineered plants?
I would say that Mr. Schmeiser's strategy of basing his defence on the existence of such a right in Canadian law, when there in fact is not nor has ever been one (not even traditionally) was not such a smart move, legally. It is not the job of the courts to deal with what the laws ought to be, but rather what they actually are. If you don't like what the law is, the smart thing to do is lobby parliament to change the law, not go to court to claim the law is on your side, when it isn't.
"stole"? But he was not charged with theft. He was sued for patent infringement. I am puzzled why people feel the fact that he took the seed from contaminating plants he found on his property makes it any less of an example of patent infringement. There is no exemption allowing one to infringe patents provided one uses one's own property to do so. This is the case with all patents. It is not something special to this case. Why is there this belief that he shouldn't be found in infringement of the patent unless he somehow illicitly obtained the seeds? It's not like there's a corresponding requirement in any other patent case.
The underlying reasoning seems to be that "you can do anything you like with your own property". Except of course, that you can't. Canada has a wide variety of laws prohibiting things you can do with your own property. There are many examples. Here are some:
*I may own pieces of metal and metalworking tools, but I may not fashion the pieces of metal into submachine guns.
*I may own piperidine, cyclohexanone and phenylmagnesium bromide, but I am not allowed to mix them in such a way as to produce phencyclidine (aka PCP).
*I can not use my own property to reproduce a patented invention without a licence from the patent holder. (This is the one of particular concern in this case.)
*I may own blank CD's and a CD burner, but if I burn a certain pattern of bits onto these blank CD's and sell them, I can be found liable for copyright infringement.
What? No, in fact the judge ruled that plants which grow on the farmer's land, even if they are blown in or are carried there by pollen, are the outright property of the farmer and the farmer enjoys the same property rights over them that anyone enjoys over their own property. The catch is that one has no right to infringe a patent with one's own property. For example, I might own a semiconductor fabrication plant (I don't, in actual fact) and I might own a bunch of semiconductor materials, but if I were to use them to manufacture microprocessors which, say, infringed an Intel patent, I'd probably hear from their lawyers. And if I were to argue "but I owned all the physical property involved", it probably wouldn't carry much weight. This is why Percy Schmeiser's protest "but I harvested the seed from plants I found growing on my own property" has cut very little weight with the courts. It is a patent infringement case. It is not a "misusing someone else's physical property" case.
In his defense, Schmeiser showed his own farm-based evidence that the fields ranged from nearly zero to 68% Roundup Ready. These tests were confirmed by independent tests performed by research scientists at the University of Manitoba, in Winnipeg, MB.
Yes. Except that there were also independent tests which indicated the plants growing in his fields in 1998 had the gene for glyphosate resistance present at a much higher rate. The results you quote are the anomalous ones among the selection of tests performed.
I quote the first court ruling:
I don't understand why they'd have to. Percy Schmeiser has already testified in court that the glyphosate resistant canola seeds growing in his fields in 1998 were 1) planted there by an employee of his; 2) were taken from plants growing in his fields in 1997 which he had identified as being glyphosate resistant. The court took his account of the facts as being the canonical one. They ruled that even with the facts as he stated them, his company infringed the patent by planting glyphosate-resistant canola seed, that was known, or should have been known to be, glyphosate resistant.
So,they have nothing to prove, and wouldn't be allowed to try if they could. The fact-finding in the case is done; it can't be reopened at the appeal level. Percy Schmeiser won it. His version of the facts stands. And so far the courts have ruled in Monsanto's favour even with his account of the facts.
they are shaking in their large, multi-billion dollar boots because a farmer from Saskatchewan is about to bring part of them down.
I very much doubt it. They won the first two rounds and legally, their case sure looks pretty ironclad (IANAL, though). Legally, Percy has not a leg to stand on. He used a patented invention. He admits it. Says he knew what it was, too. Not a lot of wiggle room there. That's why he not only lost, but got assigned costs, which is the court's way of say "you really lost, and please stop wasting our time".
The following excerpt's from the first court ruling might clarify my claim's about Mr. Schmeiser's account of the facts:
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 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.
>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.
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:
[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.
Well, that _is_ the point of patent law, to restrict what a person can do with their own property. For example, I can't make patented drugs just because I own the precursor chemicals. Just because I happen to own transistors, resistors and wires, I can't solder them together in any way I want to. In both these cases all the physical property is purely my own. If you object to the idea of patents in general, fine, of course.
I can't really see someone as a helpless victim because they successfully get sued for patent infringement when they knowingly and intentionally planted 1030 acres of genetically modified canola with full knowledge of what they were planting. If it was a case of minor and unwitting contamination that would be different. But that's not what happened in this case.
I don't think so. He didn't just go ahead using his crop with the partial contamination, without doing anything differently. He went and selected out the genetically modified plants, obtaining seeds that were nearly entirely genetically modified. There is absolutely no reason to do this if he is just going to "make the best of a bad situation and try to use what he now has - a crop at least partially containing genetically modified seeds". If you don't want to specifically farm the GM canola, a mixture of regular and GM is just as good as any other. But he didn't go with the mixture. He went with all GM. As well, he testified that the glyphosate resistant plants were only along the roadside, and that the concentration dropped off as one moved away from the roadside. So he could easily have taken his seeds from the other side of the same field, or from another one of his several fields of canola. Of course, even if he couldn't be bothered to do that, he was still fully aware before he planted the 1998 crop (the one that the judgement against him addressed) that the seed he had was glyphosate resistant to a high degree.
>The unpleasant thing about the Monsanto case was >that there was no evidence that the farmer had >done anything wrong.
I don't know that I'd agree with "no evidence". The farmer himself testified that when he suspected there was glyphosate resistant canola growing in part of one of his fields, he then went and sprayed a larger area with glyphosate. He then took the seeds from the plants that survived the spraying and planted his entire next year's crop with them. This established that the presence of the genetically modified canola growing in his fields the next year -- which is the crop that was found to infringe the patent, not the crop from the previous year -- was planted deliberately and with full knowledge of its glyphosate resistant properties. I can't see how one could put any construction on the farmer's behaviour, as he himself described it, other than that he wanted to farm the genetically modified canola but didn't want to pay the licence fees.
Read paragraphs 33-34,38-40,102-104.
Also read 41,46,58,72.
(The two groupings are by topic.)
I assume you are aware of the distinction between Mr. Shmeiser's 1998 crop, over which he was sued, and his 1997 crop, over which he was not sued.
Mr. Shmeiser only claimed that the gene got in accidentally for the 1997 crop, not the 1998 crop. The 1998 crop was planted with seed obtained from the 1997 crop which Mr. Shmeiser knew to be Roundup resistant, and indeed, which he claimed he had treated with Roundup, presumably thus increasing the fraction of gene-bearing plants.
Also, specifically regarding your assertion that "Nowhere in that court ruling is there any
information whatsoever to be found on how exactly the Monsanto product got onto Mr. Schmeiser's property, i.e. whether Mr. Schmeiser intentionally obtained it by any means, or whether the contamination to his crop was transmitted by pollen, the latter being the more likely of the two.", in fact, in paragraphs 117-118 the judge concludes on the basis of evidence presented at trial that it did not get into Mr. Shmeiser's 1997 crop by any of the accidental means you or Mr. Shmeiser have proposed. Keep in mind that the nearest field of genetically engineered canola growing in the previous year (1996) was five miles away from field number 2 (paragraph 33). Note that this does not exclude accidental means that neither you nor Mr. Shmeiser have thought of, nor does it exclude the intentional placement by others. Note also that whether or not the original plants were intentionally brought onto Mr. Shmeiser's property to appear in 1997 crop is not relevant to whether he infringed the patent with his 1998 crop, or to the fact that he knowingly and intentionally planted his 1998 crop with Roundup resistant seed: patents don't just prevent you from using the brand name product, they also prohibit you from using no-name or home-made products that work by means of the same technology, which is essentially what Mr. Shmeiser is claiming happened regarding his 1998 crop. (Indeed, that is the whole point of a patent and they would be essentially of no effect if they did not do this.) Finally, this being a civil trial, keep in mind that the standard of proof applied to reach the conclusion in the last sentence of 118 is merely the "balance of probabilities" i.e. more likely than not.
[117] A variety of possible sources were
suggested, including cross field breeding by wind
or insects, seed blown from passing trucks, or
dropping from farm equipment, or swaths blown
from neighbours' fields. All of these sources, it
is urged, could be potential contributors to
cross-breeding of Schmeiser's own canola or to
deposit of seeds on his land without his consent.
[...]
[118] It may be that some Roundup Ready seed was
carried to Mr. Schmeiser's field without his
knowledge. Some such seed might have survived
the winter to germinate in the spring of 1998.
However, I am persuaded by evidence of Dr. Keith
Downey, an expert witness appearing for the
plaintiffs, that none of the suggested sources
could reasonably explain the concentration or
extent of Roundup Ready canola of a commercial
quality evident from the results of tests on
Schmeiser's crop. His view was supported in part
by evidence of Dr. Barry Hertz, a mechanical
engineer, whose evidence scientifically
demonstrated the limited distance that canola
seed blown from trucks in the road way could be
expected to spread. I am persuaded on the basis
of Dr. Downey's evidence that on a balance of
probabilities 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.
I'm flattered that you think so. Perhaps you could drop an e-mail to Monsanto and tell them that they ought to be giving me money. In the interests of full disclosure, as an undergrad student in 1994 I had a summer intern lab job with them for three months, but have had no connection with them ever since. Also, since then, I have switched to a very different field in which they are not involved, so I don't even have to worry about keeping on their good side, professionally.
Anyway, as for your comments, the judgement says
(added emphasis mine):
[11]The defendants do not deny the presence of
Roundup Ready canola in their fields in 1998, but
they urged at trial that
neither Mr. Schmeiser nor Schmeiser Enterprises
Ltd. have ever deliberately planted, or caused to be planted, any seeds
licensed by the plaintiffs containing the patented gene.
Mr. Shmeiser was disputing only that the seed came from Monsanto. The words "licensed by the plaintiff" are key in the paragraph you quote. He did not dispute that he planted plants containing the patented gene, only that he planted plants licensed by Monsanto which contained the patented gene. There's quite a big difference.
He testified that he found some Round-Up resistant canola in his fields, which got there unintentionally, sprayed the area with Round-Up, thus killing the non-genetically-modified canola, and took seed from the surviving (Round-Up resistant) plants to plant his 1998 crop for which he was eventually sued.
Thus his claim that the crop was not planted with seed licensed from Monsanto, and my claim that he acknowledged that he had knowingly and deliberately seeded his nine fields with Round-Up resistant canola. Paragraph 11 is not inconsistent with anything I said in my previous post.
However, people have been making the claims that the suit related to minor or partial presence of the gene in his crops, which is simply not true, and that it was unwanted on his part, which is evidently not true or he wouldn't have gone to so much effort to obtain Round-Up resistant seed, and only Round-Up resistant seed, with which to plant his 1998 crop.
You also seem to have missed certain crucial paragraphs of the decision. Paragraphs 119 deals with Mr. Shmeiser's defence that he didn't get the seed from Monsanto but obtained it by selecting
Round-Up resistant plants that he found in his fields. The point is legally moot, the issue in the case being patent infringement i.e. whether he was using the invention, not whether he got his hands on the seed improperly.
[119] Yet 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. It is clear
from Mr. Schmeiser himself that he retained seed grown in 1996 in field number 1 to be his seed
for the 1997 crop. In 1997 he was aware that the crop in field number 2
showed a very high level of tolerance to Roundup
herbicide and seed from
that field was harvested, and retained for seed for 1998.
[120] I find that in 1998 Mr. Schmeiser planted canola seed saved from
his 1997 crop in his field number 2 which seed he knew or ought to have known was Roundup tolerant, and that seed was the primary source for
seeding and for the defendants' crops in all nine fields of canola in 1998.
[124] For the defendants it is urged that a finding of infringement
will adversely affect the longstanding right of a farmer to save his own seed for
use for another crop. In particular it is urged that those who do not purchase
Roundup Ready canola seed but find the plant
invading their land would be
precluded from saving their own seed for use another year since their crop
may be contaminated without action by the farmer on whose land plants
containing the patented gene are found.
[125] That clearly is not Mr. Schmeiser's case in relation to his 1998
crop. I have found that he seeded that crop from seed saved in 1997 which
he knew or ought to have known was Roundup tolerant, and samples of
plants from that seed were found to contain the
plaintiffs' patented claims
for genes and cells. His 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.
The case seems pretty clear: farmer wants to grow Round-Up resistant canola but doesn't want to pay license fees. He does so. Patent owner says this is patent infringement. Court agrees.
Again, simply not true. There is a strip of publicly owned land along the side of the roads so that the government can do things like put in utility poles etc. Mr. Shmeiser planted his crops right up to the edge of the roads, onto the publicly owned land. This is customary among farmers and is accepted and legal. Monsanto took their initial samples from this public property without going onto his private property. On the basis of the results from these samples they went to court and got a court order allowing them to take samples from within his fields. It's all in the Federal Court of Canada judgement, if you're actually interested in getting actual, true, facts in the case. Of course, I think most people don't care what actually happened because they like to demonize Monsanto, so if the facts aren't in agreement with this, they seem to like to make up ones that are.
Your sources -- anti-GM activists and Percy Shmeiser -- might possibly not be the best for accurate facts. Take a look at the actual judgement in the case, which recaps the evidence. Mr. Shmeiser intentionally and knowingly switched his farming business over to GM canola. He obtained a quantity of seed that he knew to have an extremely high level of glyphosate resistance and planted his fields with it. This is a matter of public record and was never contested by Mr. Shmeiser, at least not in court under penalty of perjury. And that's his own testimony.
His argument was that he had found GM canola growing in his fields in earlier years, and had selected out the glyphosate resistant plants by treating them with glyphosate to kill the non-glyphosate resistant ones. Thus he hadn't violated any license agreement with Monsanto.
Unfortunately, he was sued for patent infringement, and in patent infringement it doesn't matter where you got the materials from.
All that matters is whether you're using an invention that someone has patented.
It's simply not true that he was sued for minor or accidental contamination of his crops. He was growing 9 fields - 1030 acres - of entirely (actually 95-98% gene-bearing i.e. commercial levels) genetically modified canola, and he put it there knowing what it was, by his own testimony in court.
(Strictly speaking, he never said he knew the gene
was in the plants. He knew that they survived spraying with Round-Up. But he did know that they were Round-Up resistant.)
One might also note that the judge made a finding of fact in the case that the original source of GM canola in Mr. Shmeiser's fields was not any of the possible unintentional sources he described, since none of them could reasonably have gotten that much GM canola into his fields to allow him to plant 1030 acres of it one year later. It's not like there were seed-carrying trucks overturning on the road near his farm in gale-force winds every day, for instance. Reading between the lines, the judge was saying Mr. Shmeiser was lying about where he got the seed from.