Ottawa Citizen

Judge rules for biotechnology giant Monsanto in case against canola farmer

SASKATOON (CP) - A Saskatchewan farmer planted herbicide-resistant canola without the permission of the biotechnology company that developed it, a Federal Court judge has ruled. St.-Louis-based Monsanto sued farmer Percy Schmeiser, claiming he knowingly planted its Roundup Ready brand of canola without permission in 1998 on his farm near Bruno, Sask., 80 kilometres northeast of Saskatoon.

Schmeiser claimed the seed for that crop came from his own fields which were contaminated by pollen from neighbouring fields or by seed blowing off trucks passing his fields.

But in a written ruling released Thursday, Judge Andrew MacKay said evidence in the case supported Monsanto's claim more than Schmeiser's.

"On the balance of probabilities, the defendant infringed a number of the claims . . without leave or licence by the plaintiffs," MacKay wrote.

The judge also said that some of the remedies Monsanto sought should be granted.

Those remedies will include monetary damages. The judge gave lawyers for both sides three weeks to agree on a sum. If they can't, he ordered Monsanto be paid $15,450.

He also banned Schmeiser from planting any more of the herbicide-resistant canola and from selling any of the crop or seeds from 1998.

Schmeiser, 70, said he was "disappointed and upset" over the ruling. He also broke down when talking about how the case has affected his wife.

"It will take totally all of my wife's and myself's retirement funds that we've worked for all our life," he told reporters.

"I've lost 50 years of work because of a company's genetically altered seed getting into my canola, destroying what I've worked for, destroying my property and getting sued on top it."

Schmeiser said he will take the weekend to decide on whether to appeal.

Monsanto said it was gratified with MacKay's ruling.

"This decision means companies like ours can continue to invest in important research in Canada, knowing our rights will be respected," the company said in a release.

Monsanto asked the court to award the company $105,000 - the profits from Schmeiser's 1998 canola crops - plus $15,450 representing the $15 an acre user fee the company charges.

The company also sought $25,000 in exemplary damages as a deterrent to others and was considering seeking reimbursement for court costs which could exceed $250,000. The judge declined to order exemplary damages. The biotechnology giant contended samples of canola taken from the right of way beside two of Schmeiser's fields in 1997 tested close to 100 per cent Roundup tolerant.

Lawyers for the company claimed Schmeiser used seed from those fields to plant his 1998 crop which Monsanto's scientists say ranged from 93 to 99 per cent Roundup tolerant.

Schmeiser's lawyer Terry Zakreski argued Monsanto lost its exclusive rights to its patent on a gene that allows plants to survive the powerful herbicide Roundup when it was released into the environment.

He said farmers are allowed to keep seed from their own crops to plant the following year. And although Monsanto requires farmers who grow Roundup Ready canola to sign an agreement that they will not, the company has no power over farmers who do not buy the seed.

"The concern we have is just the act of growing itself becomes patent infringement," Zakreski said. "If they know or ought to know their canola has this gene in it, then they are infringing on somebody's patent."

-- Rachel Gibson (rgibson@hotmail.com), March 29, 2001

Answers

"I'm mad as hell and I'm not going
to take it anymore!"

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-- spider (spider0@usa.net), March 29, 2001.

I hope he appeals, this is truly rotten. Knowing the general details of the case makes me wonder about this judge given his ruling.

-- Will (righthere@home.now), March 30, 2001.

Ever read Marcia Clark's book, ? Her explanation for losing the case came down to dollars. When you consider the big bucks a corporation has to fight a case against one lonely, little farmer, don't blame the judge...the little guy/gal doesn't have a chance of winning. I didn't hear of any organization that came to his aid to help him fight this case, either.

The story has been in the news for a couple of years, and I've been anticipating today's verdict with dread. It removes all independence from farmers.

What energy/money do you think he's got left with which to make an appeal?

-- Rachel Gibson (rgibson@hotmail.com), March 30, 2001.

Oops! Clark's book is, Without a Doubt.

-- Rachel Gibson (rgibson@hotmail.com), March 30, 2001.

Did Schmeiser ever purchase GM seed from Monsanto? If so, then the agreement was not to replant. I think a fair payment would be the cost of the seed that would have produced his crop, nothing more.

This licensing to grow but not save and replant seed is a hige issue. It needs to be legislated. I believe a lot of farmers who tracitionally save seed will not use GM.

-- John littmann (LITTMANNJOHNTL@AOL.COM), March 30, 2001.

Did Schmeiser ever purchase GM seed from Monsanto?

John, as I understand Percy's story, he had never grown the GM seed prior to its infesting his 1400 acre farm, presumably by pollen/seeds blowing in from his neighbour's fields. I believe he lives in an area with no trees, so the possibility of this happening is not farfetched. Thus, he is saying the GM seeds infested his non-GM fields. And at no time did he have any type of agreement with Monsanto. In fact, the methods used by Monsanto in entering his property to ascertain whether or not GM seeds were growing there is even questionable.

As I understand the high court's decision, it is saying that even if it were the case that the GM seeds just blew on in, Percy should have pulled the plants growing from GM seeds and disposed of them, rather than capitalizing on their supposedly superior qualities to the degree that he kept some of the seeds to plant the next year, as he would have done or did do with his historically non-GM seeds.

This, of course, means that Percy would have lost growing space and time, as well as labour, had he ripped the GM plants from the ground as they grew. (It also begs the question of what a neighbour should do if a prize stallion gets loose and impregnates the neighbour's mare...should the mare owner then kill the foal when it is born because it comes from purveyed sperm?)

This licensing to grow but not save and replant seed is a hige issue. It needs to be legislated. I believe a lot of farmers who tracitionally save seed will not use GM.

Inability to save seed is the crux of the matter: it gives the biotech firms total control over your crops. What do you do if, for any reason, you cannot afford to buy, one spring? Or if the company that controls your seed goes under, and the other companies making the same or similar seed, using JIT, have no extra seed to sell to you?

At one time, all farmers traditionally saved seed. It would appear now, though, that the lure of the "benefits" of GM seeds are luring a large percentage of farmers away from tradition and toward increased profits--for the moment, at least.

I know Percy took some flack from his neighbours for even daring to speak up about what Monsanto was trying to do to him.

-- Rachel Gibson (rgibson@hotmail.com), March 30, 2001.