This is the second of three posts examining the topic of GMOs and patents. The first post in the series provided an overview on the topic of patents and described the concept of “terminator genes”; this post will examine two high-profile lawsuits brought against farmers for using GM seeds, and the final post will examine whether there have been cases of lawsuits brought against farmers due to inadvertent contamination.
Most of this article will focus on Monsanto, primarily because it has been the target of many activist efforts (I have yet to see a March Against Syngenta). As you may know, the commonly repeated myth is that Monsanto has taken hundreds of farmers to court for inadvertent contamination or for replanting GE seeds. According to the company’s website, there have been “147 lawsuits filed since 1997 in the United States. This averages about 8 per year for the past 18 years. To date, only 9 cases have gone through full trial. In every one of these instances, the jury or court decided in our favor.”
I wanted to determine if that number is “normal”, however it was very difficult to do a comparison. I thought I could compare it to digital piracy, however, there are millions of people who illegally download content everyday, whereas Monsanto states that it has agreements with only 325,000 farmers in the US. As such, I cannot say whether 8 lawsuits a year is aggressive or lenient. Other seed developers sue farmers as well, although I was unable to find exact numbers (this article outlines a 2.5 million dollar settlement between farmers in Arkansas and BASF). At the same time, had I been able to find numbers from other seed developers and the numbers weren’t similar, one could always argue that Monsanto does a better/worse job identifying patent infringers.
I’m going to examine two high-profile cases in two different countries: the first is Monsanto Canada Inc. v. Schmeiser. The second is Monsanto Co v. Bowman. I selected these cases because both went to the Supreme Courts of their respective countries.
Schmeiser v Monsanto Canada Inc.
The information in this section has been summarized from the following court documents: the Canadian Supreme Court Case (particularly the section entitled “Salient Facts”) and the Federal Court Case. Mr Schmeiser was also the subject of a documentary made by Journeyman Pictures entitled “David versus Monsanto”. It is just over 1 hour long and freely available here, and I’ve included some points from it below.
Percy Schmeiser had been a farmer in Saskatchewan for over 50 years (if you haven’t been, you should go. Saskatoon is lovely). He grew canola, among other crops. He saved seeds from a portion of his field every year for planting the following year. In the mid-90’s, several of his neighbors switched to Round-Up Ready (RR) canola. He never purchased a license to plant the crop.
He found out that there was Round-Up Ready canola growing on his field in 1997: he routinely sprayed the area around power-poles and ditches, and he noticed that a portion of the plants he had sprayed had survived the spraying, i.e. were Round-Up resistant (keep in mind that Round-Up is used to kill grass and plants). So he then conducted a test. He sprayed 3-4 acres of field along the roadside with Round-Up, and he noticed that about 60% of them survived, with a higher density along the roadside. This road was used by his neighbors for delivery/transport of canola seeds. He then used the seeds from that field, including the swath tested for Round-Up, to plant the following year’s crop (this important point is in paragraph 40 of the Federal case).
Mr Schmeiser’s canola was tested by a private firm who conducts random audits of canola crops. The farms are either identified by Monsanto among their licensed farmers, or they receive anonymous tips/complaints. The private firm received an anonymous tip from someone who claimed that Mr Schmeiser was growing Round-Up Ready canola without a license.
Between 1997-1998, a series of samples were taken and tested. Some were by court order, but the first series were just from road-side samples (allegedly taken without trespassing, although this is heavily contested in the documentary). The samples showed from 0-98% Round-up tolerant canola. In 1999, Mr Schmeiser was advised to buy new seeds, since the lawsuit had started.
In 1998, testing revealed that >90% of his 1000 acres were Round-Up Ready. The Federal court case states that Mr Schmeiser did not deny the presence of GM canola on his field but he claims that he did not deliberately plant or deliberately cause the planting of the seeds. Mr Schmeiser additionally stated that he had suffered substantial damage and loss due to the GM canola, because his own variety that he had been developing over the course of many years got contaminated. Additionally, he argued that in order to have infringed upon the patent, he must have sprayed his fields with Round-Up, and he claims that he did not do this. Finally, Mr Schmeiser’s defense team argued that by releasing the gene into the environment in an uncontrolled manner, Monsanto had lost or waived their rights to an exclusive patent.
The judge in the Federal Court Case wrote that Mr Schmeiser’s argument that Monsanto cannot control their patent/products defies all evidence, including the fact that Monsanto tests crops/fields, and removes “plants from fields of other farmers who complained of undesired spread of Roundup Ready canola to their fields.” During the trial, two farmers testified that they had called Monsanto to have unwanted crops removed from their field, which had been done (in the documentary, Mr Schmeiser said that all the witnesses had been paid off by Monsanto).
The judge also stated that Mr Schmeiser himself admitted to have kept seeds that had been shown to be Round-Up Resistant for replanting. The judge agreed with expert testimony that the wind/birds/bees alone would not account for the high concentration of GM crop found on the field, therefore, the patent had been infringed upon. He dismissed Mr Schmeiser’s claim that in order for Monsanto’s patent to be infringed upon, it would have required his fields to be sprayed with Round-up.
Mr Schmeiser took the case to the Supreme Court of Canada (Ottawa’s a beautiful place if you haven’t visited. And yes: I’m a shill for Travel Canada 🙂 ). The Supreme Court ruling was in favor of Monsanto, but it was not unanimous: several of the judges wrote partially in favor of Mr Schmeiser. Mr Schmeiser’s team had creatively argued that the patent was over the gene and the seed, not over the plant because plants are not patentable as higher life forms. The lawyers stated that Mr Schmeiser had ultimately “used” the canola plant and not the seed. It is on this point that several of the Justices agreed, however, the majority ruled that Mr Schmeiser had infringed on the patent by keeping and replanting the seed.
Much of what Mr Schmeiser said in the documentary contradicted the official court documents. Mr Schmeiser stated that Round-Up resistant canola was introduced without much testing and that government officials were blinded by Monsanto’s promise of better yields and more nutritious crops. This statement defies evidence since Round-Up Ready crops are built on the premise of nutritional equivalence.
Mr Schmeiser also stated that he had developed his own strain of canola, which had taken him 50 years to develop, and that Monsanto’s contamination of his fields destroyed all his work and effort. Again, this statement contradicts his own testimony in court, where he admittedly used seeds that survived Round-Up treatment to plant the following year’s crop. I have to be honest: if you like conspiracy theories, this movie is a goldmine. The topic that wasn’t addressed in the documentary was the subject of patents: the fact of the matter is that Monsanto’s seeds are patented, and if you’re a farmer and you don’t like Monsanto’s business practices, then you don’t have to plant Monsanto’s seeds.
Bowman v. Monsanto
Most of the information in this section comes from the Supreme Court Case delivered by Justice Kagan. The case was argued and decided in 2013. Vernon Hugh Bowman is an Indiana farmer who, “it is fair to say, appreciates Roundup Ready soybean seed”. He used to buy Monsanto’s Round-Up Ready soybean seeds each year, which he’d plant and then sell the crop to a grain elevator. He’d try to squeeze in a second crop, which was riskier, and as such, he didn’t want to buy seeds again from Monsanto so he simply bought “‘commodity soybeans’ intended for human or animal consumption; and planted them in his fields”. He saved the seeds from this second harvest and used it for the following season’s second crop, and he did this for eight seasons. Monsanto found out and sued Bowman.
Bowman’s defense was based on “patent exhaustion”, which means that once you buy a patented item, that item belongs to you and you can do whatever you’d like with it. The District Court rejected Bowman’s argument, and the Federal Court affirmed the decision, yet the case made its way to the US Supreme Court.
The Supreme Court received briefs from many different organizations and business sectors describing the impact that the ruling would have. I was surprised to find that one of my former employers joined forces with several of its competitors to submit a brief on behalf of the biotech sector. Similar briefs were written on behalf of the software sector, and economists also wrote a brief about the impact that the ruling would have on the economy.
In a very unusual display of unity, the court’s decision for the case was unanimous: the Justices concluded that patent exhaustion applies only to the item sold, and that the buyer cannot replicate the item. Their opinion states that if purchasers of items were to be able to make endless copies, then the patent would be effective only for the very first sale. As such, Bowman could have sold the beans he purchased from the elevator grain, or he could have eaten them or fed them to animals, but he couldn’t make copies of them by replanting the seeds.
The tone in the opinion strikes me as mocking Bowman at certain points. For example, the document states: “Still, Bowman has another seeds-are-special argument: that soybeans naturally “self-replicate or ‘sprout’ unless stored in a controlled manner,” and thus “it was the planted soybean, not Bowman” himself, that made replicas of Monsanto’s patented invention.” Justice Kagan then writes, “But we think that blame-the-bean defense tough to credit. Bowman was not a passive observer of his soybeans’ multiplication; or put another way, the seeds he purchased (miraculous though they might be in other respects) did not spontaneously create eight successive soybean crops.”
In conclusion, the Supreme Court’s opinion states that by planting the beans, he effectively replicated Monsanto’s patent and the patent exhaustion principle does not apply in this scenario.
In both of the cases I’ve reviewed above, the farmers admitted to replanting Monsanto’s seeds, and from my perspective, the courts ruled fairly. As explained in the first post in the series, GE crops are not unique in being patented. Many other crops and decorative plants are patented, and some non-GE seeds have licensing agreements between seed developers and farmers, too. As such, I think that knowingly replanting patented seeds of any variety for financial gain is equivalent to theft, particularly when your neighbors may be farming honestly and paying market price for the same seeds.
A 2003 New York Time’s story reporting a lawsuit between a farmer and Monsanto provided the following comment: “In this respect, the seed lawsuits resemble the record industry’s actions against people who share music files on the Internet. There, too, the goal is not primarily to recover money from particular defendants but to educate the public, and perhaps to scare other potential offenders.” I’d agree with that, however, I’m also left wondering if it has been in Monsanto’s best long-term interest: the lawsuits may have educated and scared farmers, but also generated much negative press with consumers.
The question remaining is whether any of the lawsuits have been in instances where farmers have been sued for unknowingly planting patented seeds. That’s the topic of the final post in this series.
This story might also interest you. It’s a similar theme but the organic farmer is claiming his neighbour’s GMO seed is entering his property and “tainting” his crop. https://au.news.yahoo.com/thewest/countryman/a/29350299/orgnanic-farmer-steve-marsh-claims-news-taint/
“Mr Schmeiser also stated that he had developed his own strain of canola, which had taken him 50 years to develop, and that Monsanto’s contamination of his fields destroyed all his work and effort.”
Even if no GE canola varieties existed, and his neighbors planted only conventional varieties, it would be difficult for Mr. Schmeiser or anyone to claim that their personal strain was free of “contaminating” genetics due to gene flow from other canola varieties grown nearby. Mr. Schmeiser’s dilemma is not unique, preventing adventitious presence of non-desired traits, (i.e. preserving genetic identity) in seed crops or qualities of harvested products resulting from unique genetics is a problem that predates the introduction of ge varieties. Typically, the law and tradition has imposed the burden on the premium producer who accesses premium markets, or is under contract obligation to deliver seeds or harvested products of genetic purity or compositional quality attributed to the genetics, to take the necessary steps to isolate the crop to the extent possible from unwanted genetics due to growing season pollen transfer. The expectation that one type of producer is entitled to zero tolerance for adventitious presence of unwanted crop genetics and it is the neighbor’s duty to prevent it would be unprecedented, and would have negative implications even if genetic engineering were abandoned.
Seed production is one example. Obviously, the value of the seed produced is dependent on the grower delivering seed of the desired genetic purity. Introduced genetics from surrounding fields would dilute that purity and if enough dilution occurred, the harvested seed would lose its value. For example, say you are a certified grower of high lysine corn seed (high lysine is a trait not introduced via genetic engineering). High lysine is valued in the feeding sector since it provides more materials for protein synthesis by livestock. The seed crop only has value if a very high % of the harvested seed is actually high lysine. Another example. There are premium markets developing for varieties of corn (again, not ge) developed for the ethanol market that yield 5-10% more ethanol per bushel than other corn varieties. Ethanol plants are willing to pay a premium, sometimes as much as 40 cents above market, for corn with this higher ethanol yield.
In both cases, growing season gene flow from nearby farms, including organic farms, could dilute the grain quality for seed or as qualifying for the premium ethanol markets. We would hardly say that if I plant a seed crop, ge variety or otherwise, that I have the right to tell my neighbors they cannot grow a crop with potentially conflicting genetics, or that I can sue them if I discover my crop’s genetic purity has been diluted by gene flow from their farm. The non-gmo premium market is trying to claim an entitlement that does not accrue to other growers who would benefit from that entitlement.
We probably cannot achieve zero tolerance for trespassing genetics whether the issue is flow of unwanted traits, ge or otherwise. Even in the examples I gave, the premium market allows some tolerance, eg. no more than 1% of the seed fails to have the desired trait, or the grower can obtain the ethanol market premium if the grain is at least 95% high ethanol yield quality. Sometimes the premium market is available if isolation steps were taken. But in each case, the grower whose value depends on maintaining genetic purity take the economic risk of failing to meet premium market standards. If organic growers are attempting to capture a market for zero tolerance for ge traits, they also have imposed the economic risk upon themselves.
I would make an exception for pharmaceutical crops, i.e. crops bred to produce drugs. There, I believe the burden should be on the producer of that crop to prevent escape of pollen or other gene transfer agent from the grower’s property. But I believe that burden should be there for pharma crops whether the pharma trait was acquired via genetic engineering methods or not.
I was always astonished at how much the GMO-haters loved the Bowman case. This is a guy who loves Roundup, and has said so. http://www.npr.org/sections/thesalt/2013/02/18/171896311/farmers-fight-with-monsanto-reaches-the-supreme-court
How he became the poster-child of their movement is very informative. I have asked ag/sci journos if anyone followed up to see if he got the court costs paid and the support from the foodies that they claimed, that they were there for him. I haven’t heard. I’ll bet they left him out to dry after he lost.
It is strange, isn’t it. I think this is what Justice Kagan suggested by saying that he “appreciated Round Up Ready soybean seed”.
This claim is patently untrue. 50 years prior to the judgement there was no canola. There was rapeseed. The first canola variety was released in 1974.
If Mr Schmeiser’s had indeed been breeding his own strain, it would have been rapeseed, which he would have been unable to sell. There is a HEAR market in Canada, but it requires low glucosinolates in the meal.
There is simply no way that a farmer like Mr Schmeiser would have had the skill set, the background germplasm and the GLC equipment required to breed canola from rapeseed.
Thanks for that insight. Not familiar with the term “HEAR market”.
One of the contradictions for gmo skeptic mythology is how the fact situations in these cases can coexist with the terminator seed myth. In both cases, plants were sprayed with roundup to purify the rr genetics by eliminating plants not having the trait, and the seeds from surviving plants saved back for planting the next season. Mr. Bowman did this for 8 seasons. Mr Schmeiser denies active propogation but claims a natural amplification in his saved seeds over several seasons. How could these fact situations exist if the seed is non-viable.
High Erucic Acid Rapeseed. The oil extracted from it is used for industrial purposes. It is not suitable for human consumption.
Ok. Thanks. I guess I was familiar, I just hadn’t encountered it in its acronym form.
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